Sindhi
Education Society & ANR. Vs. Chief Secretary, Govt. of NCT of Delhi & Ors
[2010] INSC 495 (8 July 2010)
Judgment
CIVIL
APPELLATE JURISDICTION CIVIL APPEAL No.5489 OF 2007 Sindhi Education Society
& Anr. ...Appellants Versus The Chief Secretary, Govt. of NCT of Delhi
& Ors. ...Respondents
Swatanter
Kumar, J.
1. The
Bench hearing the letters patent appeal in the High Court of Delhi at New
Delhi, while setting aside the judgment/order passed by the learned Single
Judge dated 14th September, 2005 in Writ Petition (C) No.2426 of 1992, issued a
certificate of leave to appeal under Article 133 read with Article 134-A of the
Constitution of India, 1950 (for short `the Constitution') in its judgment
dated 30th November, 2006 and considered it appropriate to frame the following
questions to be decided by this Court :- (a) Whether Rule 64(1)(b) of the Delhi
School Education Rules 1973 and the orders/instructions issued thereunder
would, if made applicable to an aided minority educational institution, violate
the fundamental right guaranteed under Article 30(1) of the Constitution and
are the respondents herein entitled to a declaration and consequential
directions to that effect ? (b) Have the judgments of the learned Single Judge
of the High Court in Sumanjit Kaur v. NCT of Delhi [2005 III AD (Delhi) 560],
as affirmed by the decision dated 1.2.2006 of the Division Bench of the High
Court in (LPA Nos.445-446/2005) Govt. of National Capital of Territory of Delhi
v. Sumanjit Kaur been correctly decided ? 2
1. It is
useful to notice at this juncture itself that the Division Bench doubted the
correctness of judgment of another Division Bench of that Court in the case of
Govt. of NCT of Delhi v. Sumanjit Kaur in LPA Nos. 445-446 of 2006 dated
1.2.2006. The Division Bench had affirmed the view taken by the Single Judge in
Sumanjit Kaur (supra). The learned Single Judge had expressed the view that
such circulars and regulations issued by the Directorate of Education, would be
unconstitutional since they are likely to interfere with the choice of the
medium of instruction as well as minority character of the institution by
compelling the appointment to the teaching faculty of persons, who may be
inimical towards that minority community. The Court further held that since the
approval in the facts of the case would be deemed to have been granted, the
Court was not expected to discuss or pass further orders in the writ petition.
The Division Bench, which passed the impugned judgment expressed the view
contra to the view taken by the learned Single Judge in the Case of Sumanjit
Kaur (supra), as affirmed by the Division Bench. While noticing that the
Government of NCT of Delhi had filed the Special Leave Petition (C) No. 16374 of
2006 in this Court in that case, the 3 Division Bench in the present case
thought it fit to grant the certificate for leave to appeal to this Court.
1. This
is how we have been called upon to examine the constitutionality and legality
or otherwise of the above questions framed by the High Court of Delhi. We are
also of the considered view that besides the above question, it will have to be
examined that even if the relevant provisions of the Delhi School Education
Act, 1973 (for short the `DSE Act') are not unconstitutional, would they still
apply with their rigors to the linguistic minority schools receiving
grant-in-aid from the Government. Before we enter upon the aspects relating to
law on the above issues, reference to the basic facts would be necessary.
Facts :-
1. The
appellant - Sindhi Education Society (hereinafter referred to as `the Society')
is a Society established and duly registered under the provisions of the Societies Registration
Act, 1860. The Society is running, inter alia, a
school known as S.E.S. Baba Nebhraj Senior Secondary School at Lajpat Nagar,
New Delhi.
1.
According to the Society, Sindhi language is one of the languages included in
VIII Schedule of the Constitution and the people speaking Sindhi language are
scattered in various parts of the country. As Sindhi language is not spoken by
the majority of people in Delhi, therefore, the Sindhi community in Delhi is
and has been held to be a linguistic minority by virtue of Article 30(1) of the
Constitution. The Society, therefore, has a constitutional right to establish
and administer educational institutions of its choice. In furtherance of such
an object, the school was established for preservation of Sindhi language and
managing the affairs of the school as per its constitution and under the
provisions of the relevant laws.
1. In the
year 1973, the DSE Act came into force with a view to provide better
organization and development of the school education in Union Territory of
Delhi and for matters connected therewith and incidental thereto. Soon after
coming into force of the provisions of the DSE Act, 1973, the Society felt that
certain provisions of the DSE Act infringed the minority character of the Society,
particularly, in matters related to administration and management of the
school.
1. It
appears that the society filed a writ petition in the High Court of Delhi being
Writ Petition (C) No. 940 of 1975, titled Sindhi Education Society (Regd.) v.
Director of Education and others, which came to be disposed of by a detailed
judgment of the Delhi High Court dated 14th July, 1982. In that judgment, the
Court specifically held that the Society was a linguistic minority and the
provisions of the DSE Act as specified in the judgment would not be applicable
to the Society. In order to put the matters with clarity, it will be useful to
refer to the findings recorded by the Court which read as under :- "In the
present case the Delhi School Education Act is applicable only to the Union
territory of Delhi. It is with reference to this Territory that one has to
consider as to whether Sindhi is a language spoken by the majority or minority
of the people. On this there can be no doubt. Sindhi is not spoken by majority of
the people in Delhi and, therefore, the Sindhi community in Delhi can
legitimately be regarded as a linguistic minority. Just as a religious minority
may be composed of persons whose mother-tongue may not be the same, similarly a
linguistic minority may not necessarily be composed of people who belong to a
religious minority of the State. As such, every person, who is a Sindhi, would
be regarded as belonging to a linguistic minority irrespective of the fact as
to 6 whether he is a Hindu, or a Muslim or a Christian to the effect that some
of the provisions of the Act and the Rules would not apply to minority
institutions, while some other provisions could be made applicable only with
certain modifications or in accordance with the observations made by the Court.
We may now summarise the decision of this Court with regard to those provisions
of the Act and the Rules which it held as not being applicable, or being
applicable as per the directions contained therein, because the learned counsel
for the petitioner states that a similar direction should be issued in this
case also.
xxx xxx
xxx xxx xxx The aforesaid provisions are not to apply to the school but the
Director of Education, Delhi should be kept informed of any order of dismissal,
removal, reduction in rank or termination of service of an employee by the
management. If the Administration receives information that the disciplinary
powers are being abused by the school then the Administration will have a right
to suspend, reduce or stop the grant-in-aid to the School after giving a
hearing to the school.
Section
27A and B :- The said provisions are not to apply to the minority school.
The writ
petition is accordingly allowed in the aforesaid terms and, like in Jain
Sabha's case (supra), it is directed that the aforesaid provisions of the Delhi
School Education Act, 1973 and the Rules framed there under will 7 not apply to
the petitioner or would apply only in the manner in which they have been
interpreted by this Court. The petitioner will be entitled to costs. Counsel's
fee Rs.550/-."
1. The
aforesaid judgment appears to have attained finality and, in fact, was not
impugned before this Court. The Division Bench, while deciding the above case,
clearly held that certain Rules would not be applicable and it specifically
noticed the provisions relating to the constitution of the Managing Committee
under Rule 59, Rule 64, different Clauses under Rule 96(3), Rule 98, Rule 105
and Rule 120 of Delhi School Education Rules, 1973 (for short `DSE Rules') in
that behalf. The Court held that Rule 64 of the DSE Rules is to be construed in
respect of minority schools to require compliance only if those provisions of
the Act and the Rules and instructions there under are in consonance with the
provisions of the Constitution, particularly, with Article 30(1) of the
Constitution.
1. Rule
64, primarily, deals with the conditions of providing grant-in- aid and further
states that no aid is to be granted unless suitable undertaking is given by the
Managing Committee. Rule 64 came to be amended by Notification Nos. 1340-2340
dated 23rd 8 February, 1990. This Rule prescribe certain limitation which the
Competent Authority can impose in exercise of its powers. Even before amendment
of this Rule, on 12th March, 1985, instructions were issued by the Deputy
Director of Education, addressed to the appellant stating, inter alia, that in
accordance with provision of Rule 64 of the DSE Rules, the Managing Committee
of the Society was required to furnish an undertaking that they would make reservation
in the appointments of teachers for the Scheduled Castes and Scheduled Tribes.
The reference was also made to the instructions issued by the Department of
Personnel, Government of India, wherein reservation for Scheduled Castes and
Scheduled Tribes in the Institutions/Organisations was ordered. The relevant
part of the said letter reads as under :- "4. Since the schools are
required to apply for grants-in-aid every years on the prescribed proforma as
provided under the Act, they are also required to given undertaking to make
reservation in the services and posts for scheduled castes and scheduled tribes
accordingly. A specimen of the declaration is sent herewith the request that
the same be sent to this office duly filled in and signed with stamp of the
Authority signing.
5. It may
be noted that the future grants-in-aid shall be released on giving the
aforesaid undertaking on the enclosed proforma."
The
appellant Society responded to that letter vide reply dated 15th April, 1985,
inviting attention of the authorities to the judgment of the High Court dated
14.7.1982, in Writ Petition No. 940 of 1975, deciding, inter alia, that the
school in question, has been held to be a minority institution and that Rule 64
of the DSE Rules is to be accordingly construed in respect of minority
school(s) that they require compliance, only, if the same is in consonance with
the provisions of Article 30(1) of the Constitution.
1. The
Secretary (Education), Govt. of NCT of Delhi, Respondent No.3, thereafter vide
his communication dated 21st March, 1986, informed the appellant that the
undertaking, which was required to be given by all the Government aided schools
in the matter of compliance with the provisions relating to reservation for
Scheduled Castes and Scheduled Tribes in the institutions, is not applicable to
the minority institutions. Thus, they were not required to adhere to the same.
It will be useful to refer to the 10 communication of the Government at this
stage itself, which reads as follow :- "In connection with circular letter
issued vide even number dated 12.3.85, this is hereby clarified that an
undertaking in writing which was required to be given by all the Govt.
Aided
Schools in the matter of compliance with the provisions relating to reservation
for SC/ST in the institutions is not applicable to the minority institutions.
As such the managements of the institutions are at the discretion to adhere or
not to adhere to the instructions issued by the Govt. of India regarding
reservation of SC/ST."
1. The
aforesaid letter was issued after the judgment of the Court had been
pronounced, however, according to the appellant, in violation of all the
principles and the law laid down by that Court, they still received another
communication from the authorities in September, 1989, addressed to all the
schools that appointment of the Scheduled Castes and Scheduled Tribes
candidates is a precondition for all the agencies receiving grant-in-aid from
the Government and while referring to Rule 64 of the DSE Rules and its
amendment, they were required by the authorities to comply with this condition.
The correctness of this action of the respondent was questioned by appellants
by filing a writ petition in 11 the High Court, which came to be registered as
Writ Petition (C) No.2426 of 1992 titled as Sindhi Education Society v. Union
of India and Others. This writ petition was allowed by the learned Single Judge
vide his Order dated 14.9.2005. The learned Single Judge felt that the case was
entirely covered by the judgment of that Court in the case of Sumanjit Kaur
(supra). That was the primary and only reason, stated by the learned Single
Judge, for allowing the writ petition.
2.
Aggrieved from the judgment of the learned Single Judge, the NCT of Delhi filed
a letter patent appeal being L.P.A. Nos. 33 to 36 of 2006 and 40-43 of 2006,
and the same was not only accepted but the Division Bench had felt it proper to
grant certificate of leave to appeal to this Court, vide judgment dated
30.11.2006. While setting aside the judgment of the learned Single Judge and
also expressing a dissent to the Division Bench Judgment in the case of
Sumanjit Kaur (supra), the Division Bench, primarily, recorded the reasons as
[a] that Rule 64(1)(b) does not infringe any right of the minority institution,
[b] Clause 11 of the Kerala Education Bill, 1957, which was the subject matter
of consideration before the Supreme Court in the case of In Re. 12 Kerala
Education Bill, 1957, [(1959) SCR 995], was pari materia to Rule 64(1)(b) of
DSE Rules, and as such was in conformity with law and lastly, implementation of
roster of reservation was in consonance with the stated principle and the
fundamental rights are not infringed. For these reasons, the High Court passed
the order afore-noticed, resulting in filing of the present appeal.
1. We
have already noticed the questions of law of general public importance, which
had been framed by the High Court at the time of issuance of certificate. The
appellants herein succeeded before the learned Single Judge, which order in
turn, was set aside by the Division Bench of the High Court. The appellants in
writ petition had raised a specific challenge to the provisions of Rule
64(1)(b) of the DSE Rules which had been accepted by the learned Single Judge
as the matter was stated to be covered by the judgment of that Court in
Sumanjit Kaur's case (supra). The respondents vide their letter dated 12th
March, 1985, and, thereafter, while referring to the Department of Personnel
and Administration, letter dated 7th October, 1974, pressed upon the Managing
Committee of the institutions, which were Government aided including minority
institutions, to furnish an undertaking that 13 they would abide by the rule
promoting reservation while making appointment of teachers in the school. Thus,
the question that clearly arise for consideration before this Court is whether
the provisions of Rule 64(1)(b) of the DSE Rules is ultra-vires or violative of
Article 30(1) of the Constitution. In the alternative, whether the said Rule,
as framed, can be enforced against the Government aided institutions belonging
to linguistic minorities.
In order
to examine this aspect in some elaboration, we would have to dissect it into
two different sections. Firstly, the law in relation to such minorities, as has
been settled by catena of judgments of this Court, and their correct
application to the present case, secondly, analysis of the scheme of the DSE
Act and the Rules framed there under, in relation to minority institutions.
Depending upon the answer to these two aspects, lastly, whether the Rule is
enforceable against the minority institutions to the extent that the
authorities can deny grant-in-aid for non-compliance.
Scheme
under the Delhi School Education Act, 1973 and the Rules framed thereunder in
relation to the Minority Institutions :- 14
1. As
already noticed, there is no dispute to the fact that appellant is a minority
institution and the Society is one which enjoys the status of a linguistic
minority and thus is entitled to all the constitutional benefit and protection
under Articles 29 and 30 of the Constitution. Firstly, one has to examine what
is a minority.
`Minority',
would include both religious and linguistic minorities.
Section
2(o) of the DSE Act defines `minority school' as follows:- "minority
school" means a school established and administered by a minority having
the right to do so under clause (1) of Article 30 of the Constitution Once an
institution satisfies the above ingredients, it has to be given the status of a
minority institution. The High Court in its judgment in Sindhi Education
Society (Writ Petition No.940 of 1975) (supra) had clearly declared that the
appellant is a linguistic minority and that judgment has attained finality.
1. There
is hardly any dispute in regard to status of this Society.
Prior to
coming into force of DSE Rules, the Society was obviously free to carry on its
activity of running the educational institution, free from any restriction and
in accordance with law. DSE Act 15 was enacted to provide better organization
and development of school education in Union Territory of Delhi and for matters
connected therewith or incidental thereto. The very object of this Act was,
therefore, to improve the organization and school education in Delhi. The
primary object, thus, was to aid and develop the education system at the school
level. In order to achieve this purpose, power is vested in the Administrator
to regulate education in all schools in Delhi in accordance with the provisions
of the DSE Act and Rules made there under. Section 3(3) of the DSE Act makes it
abundantly clear that on and from the commencement of DSE Act, and subject to
the provisions of Clause 1 of Article 30 of the Constitution, the establishment
of a new school or opening of a higher class or even closing of existing
classes shall have to be in accordance with the provisions of the DSE Act, but
for such compliance, the recognition shall be denied to such institution by the
appropriate authority. The school is required to have a scheme of management in
terms of Section 5 of the DSE Act, but such scheme insofar as it relates to the
previous approval of the appropriate authority, will not be applicable to the
scheme for an unaided school.
1. Powers
of wide dimensions and authority are vested in the Administrator under Section
20 of the DSE Act, which forms part of Chapter VII relating to taking over of
the management of the schools under the provisions of the Act. Whenever the
Administrator is satisfied that the managing committee or the manager of the
school has failed or neglected to perform their duties and carry on the
management of the school in accordance with the provisions of the Act, the
Administrator can take over the management of the school whether such school is
recognized or not. But, such action can be taken only in accordance with the
prescribed procedure. However, where the Administrator feels that it is
expedient to take over the management of the school, it could pass orders from
time to time, outer limit being 3 years which again could be extended for
further period, if the Administrator is of that opinion for valid reasons but,
in any case, it cannot exceed the period of 5 years in its entirety. These
powers of the Administrator indicate the legislative intent to ensure that the
object of the DSE Act is not defeated and every recognized or unrecognized
institution, without classification on the basis of receiving Government aid,
should function and be managed in 17 accordance with the provisions of the DSE
Act and the Rules framed thereunder. It is of great significance to notice here
that the legislature in its wisdom by a specific provision under Section 21 of
the DSE Act has kept minority schools outside the ambit and scope of Section
20. In other words, the power of control and management vested in the authority
even on the basis of alleged breach of conditions would not enable the
authorities to take over the management of any minority school. Section 21,
thus, is an absolute exception to the applicability of Section 20 of the DSE
Act. Section 28 of the DSE Act empowers the Administrator to frame Rules with
the previous approval of the Central Government. The Administrator has been
empowered under Section 28(2), in particular and without prejudice to the
generality of the stated powers, to frame Rules in relation to the matters
specified in that sub-section.
1. It
will not be necessary for us to notice in detail the purposes for which Rules
can be framed but reference to few of them would be useful. Under Section
28(2)(b), Rules can be framed in regard to the condition which every existing
school shall be required to comply. While, Section 28(2)(g) contemplate framing
of minimum 18 qualifications for, and method of recruitment, and the terms and
conditions of service of employees, Section 28(2)(k) empowers the Administrator
to frame Rules in regard to the conditions under which aid may be granted to
recognized schools and on violation of which, aid may be stopped, reduced or
suspended and Section 28(2)(q) relates to faming of Rules for admission to a
recognized school and lastly under Section 28(2)(u), Rules can be framed in
regard to financial and other returns to be filed by the managing committee of
recognized private school. It has to be noticed that all these Rules can be
framed and have only one purpose `make rules to carry out the provisions of the
Act''. In other words, the framing of Rules does not empower the Administrator
to go beyond the purpose of object of the Act and all these Rules so framed
should be intended only to further the cause of the Act and bring nothing into
existence, which is specifically or by necessary implication impermissible
under the provisions of the DSE Act.
1. At
this point reference to some of the DSE Rules can be of some assistance. Under
Chapter-II - Regulation of Education - The freedom of minority institutions to
establish educational institutions for advancement of their own language and
culture is a protected 19 freedom. Rule 10 of the DSE Rules recognizes such
mandate. It is provided there that any linguistic minority which intends to set
up school with the object of imparting education in the mother- tongue of such
linguistic minority, shall be entitled to do so and shall be entitled to
receive grant-in-aid, if other conditions for that purpose are satisfied.
However, second proviso to this rule states that linguistic minority can decide
to impart education at the school in a language other than the language of such
linguistic minority.
In that
event, it shall not be obligatory upon the Administrator to give grant-in-aid
to such schools. In other words, this rule recognizes two aspects - firstly,
the extent of freedom available to the linguistic minority for educational
purposes and secondly, an obligation on the part of the Administrator to give
grant-in-aid unless the linguistic minority was covered by the second proviso.
The
indication that such institution would normally be entitled to receive
grant-in-aid, if they satisfy the conditions, is clear in terms of Rule 10.
1.
Chapter-III deals with Opening of New Schools or Classes or Closure of Existing
Schools or Classes. Rule 44 provides that every individual, association of
individuals, society or trust which 20 desires to establish a new school, not
being a minority school, is required to give intimation in writing to the
Administrator of their intention to establish such school. The details of the
intention/intimation required have been stated in Rule 44(2).
Amongst
others, it requires details to be submitted in respect of managing committee of
the proposed new school and the proposed procedure until its recognition under
the DSE Act for selection of the Head of the School and the teachers as well as
the non-teaching staff etc. It is noteworthy that this rule is applicable to
the institutions not being a minority school. The minority institution,
therefore, has specifically been kept out of the application of this rule, the
purpose being that the administration and management of a minority school will
remain outside the rigors of compliance of Rule 44.
1.
Chapter-IV of the DSE Rules deals with Recognition of Schools.
Rule 50
states the condition which an institution is required to satisfy before it can
be granted recognition. Rule 56 empowers the competent authority to suspend or
withdraw the recognition granted.
1.
Chapter-V deals with the Scheme of Management of the recognized schools. Rule
59 is one other provision which, primarily, indicates the limitations of the
schools in regard to furnishing of scheme of the management of the recognized
schools. All the recognized schools are expected to submit to the authority the
scheme of management and comply with the requirements of formation of managing
committee of the school and total number of the members in terms of that rule.
The managing committee would include two members to be nominated by the
Director, and other members to be nominated or elected, as the case may be, in
accordance with the rules and regulations of the society in terms of Section
590(1)(iv), (v) and (vi) respectively. The members, who are nominated by the
Director and the persons nominated by the Advisory Board, in the case of
schools other than the minority schools, have an effective role to play in
decisions of management as well as they have right of voting. However, in
regard to minority school the framers of the rule have added five provisos to
Rule 59(1). They specifically provided that in a minority school, the members,
instead of being elected, would be the one nominated by the society or the
trust by 22 which such unaided minority school is run. The educationist, to be
nominated by the Director, shall be a non-official belonging to the minority by
which the school is established and run, and the managing committee shall
co-opt two senior-most teachers out of a panel of ten senior-most teachers of
the school by rotation and in case the school works in two shifts, then one
senior-most teacher shall be co-opted from a panel of five senior most teachers
in each shift by rotation. Sub-rule (iv) of Rule 59 which gives powers to the
Advisory Board to nominate two persons will not apply in the case of the
minority school. Furthermore, the members nominated by the Director, Education
in exercise of its powers under Sub-rule (v) of Rule 59 shall not be entitled
to take part in the management of the minority school and shall function as
advisers and observers to put forward the views of the Government in the meeting.
This reflects the kind of control, the framers of the rule desired, that the
authorities should exercise over the aided minority schools in comparison to
the Government aided non-minority schools. There is clear line of distinction
which gets more and more prominent with further reference to the 23 various
provisions of the DSE Act and the Rules framed thereunder.
1.
Chapter-VI is the basic chapter, with which, we may be concerned in the present
case, as it deals with grant-in-aid. Under Rule 60, every aided school, which
was receiving aid, will continue to receive such aid, so long as it fulfills
the conditions of receiving the aid, in terms of Rule 64. Rule 64 deals with
the condition that an undertaking in writing has to be filed by the institution
to receive the grant-in-aid allowed by the competent authority under the
provisions of the DSE Act. The Rule reads as under :
"(1)
No school shall be granted aid unless its managing committee gives an
undertaking in writing that:
(a) it
shall comply with the provisions of the Act and these rules;
(a) it
shall fill in the posts in the school with the Scheduled Castes and the
Scheduled Tribes candidates in accordance with the instructions issued by the
Central Government from time to time and also maintain the roster and other
connected returns in this behalf;"
Rule 65
details the conditions which a school, applying for grant-in-aid, should
satisfy. The grant-in-aid is required to be given 24 only for the qualified
staff as Rule 66 imposes no obligation upon the State to release grant-in-aid
in relation to unqualified staff. The management of the school must employ
adequate number of qualified teachers and other staff which is approved by the
Director under the norms prescribed for such post or which may be prescribed
from time to time.
1. Rule
96 under Chapter VIII relates to the Recruitment and Terms and Conditions of
Service of the Employees of the Private Schools other than the Unaided Minority
Schools. This chapter itself will not apply to unaided minority schools but
would apply to other schools. The chapter deals with how a selection committee
will be constituted and how the employees including the teachers would be
appointed to the schools. DSE Rules 96(1) to 96(3) deals in some detail with
reference to appointment, constitution of the selection committee, methodology
of selection and appointment to the post of teacher as well as Group-D
employees. Significantly, DSE Rules 96(3A) and 96(3B) are exceptions to the
earlier part of the DSE Rules. The said DSE Rule 96(3A) refers to various
nominations which makes it clear that in the case of aided minority schools,
such nominated persons, under different clauses stated 25 therein, shall act
only as advisers and will not have the power to vote or actually control the
selection of an employee. Rule 96(3B) states that notwithstanding anything
contained in sub-rule (3), the Selection Committee of a minority school shall
not be limited by the number specified in the said sub-rule and its managing
committee may fix such number. Obviously, all these provisions have been framed
with the emphasis on the fact that authorities like the Administrator, Director
and other officers do not have a direct, and in some cases, even indirect
participation in the management and administration of the minority school which
includes the selection and appointment of teachers. It attains a greater
significance, once these provisions along with restrictions stated in the DSE
Act are read in conjunction with Articles 29 and 30 of the Constitution.
1.
Chapter-XI of the DSE Rules deal with Unaided Minority School.
It
requires that recruitment of employees of each recognized unaided minority
school shall be made on the recommendation of a Selection Committee to be
constituted by the managing committee of that school. Rule 128(1) requires the
minimum qualifications for appointment as a teacher of an unaided minority 26
school shall not be less than those as are prescribed by the Affiliating Board.
In the event, no minimum qualifications have been specified by the Affiliating
Board, in respect of the post of any teacher, the minimum qualifications for
recruitment to the such post be made by the Administrator after considering
such recommendations or suggestions as may be made by the unaided school in
this behalf. In terms of Rule 129, the appropriate Authority has been empowered
to relax the minimum qualification for such period as it may deem fit and
proper.
Chapter
XII deals with `Admissions to Recognized Schools'.
1. Thus,
the scheme of the DSE Act, in particular, is to give greater freedom to the
aided minority institutions and not to impinge upon their minority status as
granted under Article 30(1) of the Constitution. We shall shortly discuss the
constitutional mandate and effect thereof with reference to the facts of the
present case.
On the
analysis of the above, it is clear that Section 21 of the DSE Act has to be
given its true meaning and permitted to operate in the larger field. The
stringent power vested in the appropriate Authority in terms of the Section 20
cannot be enforced against a 27 minority institution. It is the consequence
flowing from the violations committed by management of a school that empowers
the authorities to take over the management of the school within the scope of
Section 21 of the DSE Act. Minority Institutions being an exception to these
rules have been given a distinct and definite status under the Act and the
Rules framed thereunder.
Discussion
on law particularly with reference to the judgments relied upon by the
respective parties.
1. Mr.
P.P. Malhotra, the learned Additional Solicitor General of India, with great
emphasis, argued that by providing and enforcing the intent of Rule 64(1)(b) of
the DSE Rules, the Government is not causing any discrimination. The said DSE
Rule relating to reservation is uniformly applied to all schools. It was fairly
stated that there is no dispute to the fact that the appellant institution is a
linguistic minority institution. It is also contended that the controversy in
the present case is covered by Kerala Education Bill, 1957, case (supra) and the
appeal deserves to be dismissed.
1. The
direction issued by the Directorate of Education for furnishing of such an
undertaking is contemplated under Rule 64(1)(b) and 28 its implementation is in
consonance with the principle of equality before law and also within the ambit
of Article 15 of the Constitution. The right is vested in the Government to
make reservation, as such the grant-in-aid is to be used for a social object,
namely, upliftment of reserved category, even by providing employment in
minority institutions, like the appellant. This shall be the true spirit of the
preamble of the Constitution, which requires attainment of the goal, to secure
to all citizens, justice, social, economic and political. These expressions are
of wide magnitude and the authorities are well within their competence to
require minority institutions as well to comply with the rule of reservation
and file undertakings as contemplated under Rule 64(1)(b) of the DSE Rules. The
reliance has primarily been placed upon the judgment of this Court in the case
of Kerala Education Bill, 1957 (supra); T.M.A. Pai Foundation v. State of
Karnataka [(2002) 8 SCC 481]; Kanya Junior High School, Bal Vidya Mandir v.
U.P. Basic Shiksha Parishad [(2006) 11 SCC 92], Secy. Malankara Syrian Catholic
College v. T. Jose [(2007) 1 SCC 386] and Brahmo Samaj Education Society v.
State of W.B.
[(2004) 6
SCC 224].
1. On the
contra, the submission made by Mr. K.L. Janjani, the learned counsel appearing
on behalf of the appellant is that merely because the State is providing
grant-in-aid to a minority institution, it will not clothe the authority with
the power to interfere in the administration and management of a minority
institution.
Right to
appoint a teacher is a part of the management and, thus, is free from any
restriction. In terms of Article 30 of the Constitution, the right of minority
to establish and administer educational institutions of their own choice, is
incapable of being interfered with by the authorities and the language of Rule
64(1)(b), as well as the directives issued by the respondents violates the
constitutional protection available to the appellants in accordance with law.
It is the contention of the appellant that the law enunciated in Kerala
Education Bill case,1957 (supra) has been watered down suitably by this Court
in T.M.A. Pai's case (supra) and also that the provisions of DSE Act are not
pari materia, much less, identical to that of Kerala Education Bill, 1957 case
(supra). There are specific provisions in the DSE Act and the Rules exempting
linguistic minority institutions and, as such, the State cannot derive any
benefit from the said judgment. The 30 purpose of allowing grant-in-aid is to
create equality and parity with other institutions. But this does not mean that
the authorities under the pretext of granting to the minority institutions
additional protections impose conditions which would frustrate the very purpose
and object of minority institution and for non-compliance thereof, deny the
grant-in-aid. On the simple interpretation of Articles 15, 29 and 30 of the
Constitution, it is crystal clear that the linguistic minority institution has
the right to make appointments, free of restriction or reservation, as that
alone will be in the interest of the linguistic minority. The learned counsel
for the appellants relied upon the dictum of order in T.M.A. Pai's case
(supra), in addition to the Ahmedabad St. Xaviers College Society v. State of
Gujarat [AIR 1974 SC 1389]; Father Thomas Shingare v. State of Maharashtra [(2002)
1 SCC 758]; T. Devadasan v. Union of India [AIR 1964 SC 179], Brahmo Samaj
Education Society (supra) and Lt. Governor of Delhi v. V.K. Sodhi & Ors. [AIR
2007 SC 2885] in support of his contentions.
1. In the
light of the submissions made before us, it will be pertinent for us to examine
how the law has travelled for all these years in relation to the right of
minority to run their institutions and the 31 extent to which they can be
subjected to control by the appropriate authorities, in accordance with law.
The seven-Judge Bench of this Court in the case of Kerala Education Bill, 1957
(supra) was concerned with constitutionality or otherwise of certain clauses of
the Kerala Education Bill, 1957. While, discussing the scope of rights
available to the minority institutions in relation to running of educational
courses, the Court dealt with different aspects of the matter and discussed the
constitutional provisions construed in light of the Kerala Education Bill. The
Bill had provided different clauses which the institution was required to
satisfy to receive the grant-in-aid. In para 29 of the judgment, the Court
noticed various clauses of the Kerala Education Bill, the validity of which was
challenged before this Court. The argument advanced before the Court, inter
alia, was also with reference to the Anglo Indian Education Institutions, that
they were entitled to receive the grant under Article 337 of the Constitution
and the provisions of the said Bill, which legitimately come within the
provisions which infringe their right not only under Article 337 of the
Constitution, but also violate Article 30(1) of the Constitution. In that case
they are prevented from effectively exercising its rights. A Bench 32 noticed
the grievances of the minorities in para 29 of the judgment and discussed the
same in para 31 before arriving at the final conclusion.
1. The
Court in that case was dealing with the Presidential Reference, in terms of
Article 143 of the Constitution. While referring to the questions framed for
the opinion of the Court, the Court noticed that the width of power of control
thus sought to be assumed by the State evidently appeared to the President to
be calculated to raise doubts as to the constitutional validity of some of the
clauses of the said Bill on the ground of prohibited infringement of some of
the fundamental rights granted to the minority communities by the Constitution.
The Bench in Para 10 noticed the questions which are as under :- (1) "Does
sub-clause 5 of clause 3 of the Kerala Education Bill read with clause 36
thereof or any of the provisions of the said sub-clause 36 thereof or any of
the provisions of the said sub-clause, offend article 14 of the Constitution in
any particulars or to any extent? (1) Do sub-clause (5) of clause (3), sub-clause
(3) of clause 8 and clause 9 to 13 of the Kerala Education Bill or any
provisions 33 thereof, offend clause 91) of article 30 of the Constitution in
any particulars or to any extent? (1) Does clause 15 of the Kerala Education
Bill or any provisions thereof, offend article 14 of the Constitution in any
particulars or to any extent? (1) Does clause 33 of the Kerala Education Bill,
or any provisions thereof, offend article 226 of the Constitution in any
particulars or to any extent?"
The
answers to question Nos. 1 and 3 :
"That
result, therefore, is that the charge of invalidity of the several clauses of
the Bill which fall within the ambit of questions 1 and 3 on the ground of the
infraction of Article 14 must stand repelled and our answers to both the
questions 1 and 3 must, therefore, be in the negative".
Answer to
question No. 2 :- "Yes, so far as Anglo Indian education institutions
entitled to grant under Article 337 are concerned. (ii) As regards other
minorities not entitled to grant as of right under any express provision of he
constitution but are in receipt of aid or desire such aid and also as regards
Anglo Indian educational institutions in so far as they are receiving aid in
excess of what are due to them under Article 337 clauses 8(3) and 9 to 13 do
not offend Article 30(1) but clause 3(5) in so far as it makes such educational
institutions subject to clauses 14 and 15 do not offend Article 30(1).
34 (iii)
Clause 7 (except sub clauses (1) and (3) which applies only to aided schools),
clause10 in so far as they apply to recognized schools to be established after
the said Bill comes into force do not offend Article 30(1) but clause 3(5) in
so far as it makes the new schools established after the commencement of the
Bill subject to clause 20 does offend Article 30(1)."
In the
said case, the Court held that right of the minorities to some extent was
restricted in the sense that general control still could be exercised by the
authorities concerned, but in accordance with law. That is how Clause 11 of the
Bill, which has been very heavily relied upon by the respondents before us,
completely put an embargo on the appointment of teachers of their choice and
the teachers could only be appointed out of the panel selected by the Public
Service Commission. This clause was held not to be in violation of the
Constitution, but clauses 14 and 15, which related to taking over of the
management of an aided school for the conditions stipulated therein, were held
to be unconstitutional and bad. This was in view of the law stated under the
Bill and its scheme that weighed with the Court to record findings
afore-noticed.
1. Still
another Seven Judge Bench of this Court, in the case of the Ahmedabad St.
Xavier's College Society (supra) was, primarily, concerned with the scope of
Articles 29 and 30 of the Constitution, relating to the rights of minorities to
impart general education and applicability of the concept of affiliation to
such institutions. Of course, the Court held that there was no fundamental right
of a minority institution to get affiliation from a University. When a minority
institution applies to a University to be affiliated, it expresses its choice
to participate in the system of general education and courses of instructions
prescribed by that University, and it agrees to follow the uniform courses of
study.
Therefore,
measures which will regulate the courses of study, the qualifications and
appointment of teachers, the conditions of employment of teachers, the health,
hygiene of students and the other facilities are germane to affiliation of
minority institutions.
With
regard to grant of an appropriate protection of such community in terms of
Article 30 of the Constitution, the Court held as under :- "12. The real
reason embodied in Article 30 (1) of the Constitution is the conscience of the
nation that the minorities, religious as well as 36 linguistic, are not
prohibited from establishing and administering educational institutions of
their choice for the purpose of giving their children the best general
education to make them complete men and women of the country. The minorities
are given this protection under Article 30 in order to preserve and strengthen
the integrity and unity of the country The sphere of general secular education
is intended to develop the commonness of the boys and girls of our country.
This is in the true spirit of liberty, equality and fraternity through the
medium of education. If religious or linguistic minorities are not given
protection under Article 30 to establish and administer educational
institutions of their choice, they will feel isolated and separate. General
secular education will open doors of perception and act as the natural light of
mind for our countrymen to live in the whole.
xxx xxx
xxx xxx xxx
30. Educational
institutions are temples of learning. The virtues of human intelligence are
mastered and harmonized by education.
Where
there is complete harmony between the teacher and the taught, where the teacher
imparts and the student receives, where there is compete dedication of the
teacher and the taught in learning, where there is discipline between the
teacher and the taught, where both are worshippers of learning, no discord or
challenge will arise. An educational institution runs smoothly when the teacher
and the taught are engaged in the common ideal of pursuit of knowledge. It is,
therefore, 37 manifest that the appointment of teachers is an important part in
educational institutions.
The
qualifications and the character of the teachers are really important. The
minority institutions have the right to administer institutions. This right
implies the obligation and duty of the minority institutions to render the very
best to the students. In the right of administration, checks and balances in
the shape of regulatory measure are required to ensure the appointment of good
teachers and their conditions of service. The right to administer is to be
tempered with regulatory measures to facilitate smooth administration.
The best
administration will reveal no trace or color of minority. A minority
institution should shine in exemplary eclectism in the administration of the
institution. The best compliment that can be paid to a minority institution is
that it does not rest on or proclaim its minority character."
As is
evident from the above noticed dictum of the Court the emphasis had been laid
on the right of the minority institutions to administer institution.
Appointment of teacher is an important part of administration of educational
institution and administrative freedom of the minority in that regard.
1. Now we
may refer to a judgment of this Court in the case of Managing Committee, Khalsa
Middle School v. Mohinder Kaur [(1993) Supp. 4 SCC 26]. In this case, the Court
was concerned 38 with the amendments made in the Rules and Regulations of the
Society. The date of passing of the resolution or its registration, which would
be the effective date while dealing with the termination of service of a
teacher without obtaining the approval of the Director of Education, could not
be annulled for violating the provisions of the DSE Act. While registering the
Khalsa Education Society, which was running a school known as Khalsa Primary
School, belonging to a minority, it lost its status of minority, which was
restored in July, 1979. The action was initiated during the interregnum period
when the Society was working as non-minority institution, the Court took the
view that as a non-minority institution, it was required to comply with the
conditions of the DSE Act and the Rules framed thereunder, but once the
character of minority institution was restored, the provisions will not be
attracted. In this regard, the Court held as under :- "10...........Here
we are concerned with the amendment in the Rules and Regulations of the
Society. In the absence of any requirement in the Societies
Registration Act that the alteration in the Rules and
Regulations must be registered with the Registrar, it cannot be held that
registration 39 of the amendment is a condition precedent for such an
alteration to come into effect. It is, therefore, not possible to accept the
contention of Shri Mehta that the amendment which was made in the Rules and
Regulations by resolution dated July 1, 1979 did not come into effect till
March 13, 1980 when the amended Rules and Regulations were registered with the
Registrar, Firms and Societies. The said amendment should be treated to have
come into effect from the date on which the resolution making the said
amendment was passed, i.e. July 1, 1979.
As a
result of the said amendment in the Rules and Regulations of the Society, the
alterations made in the Rules and Regulations in 1963 were reversed and the
position as it stood prior to the amendment of 1963 was restored. Consequently,
the school which was a minority institution till the amendment of the Rules and
Regulations in 1963 and had ceased to be a minority institution as a result of
the amendment in 1963 regained its status as a minority institution after July
1, 1979, when the rules and regulations were amended and the original position
was restored. In view of the restoration of the minority character of the
institution the provisions of the Education Act and the Education Rules ceased
to be applicable to the institution after July 1, 1979. The impugned order of
termination order of the services of the respondent was passed on December 31,
1979, i.e., after the school had become a minority institution. The said order
cannot, therefore, be held to be invalid on the ground that it was passed in
contravention of Section 8 of the Education Act. The order passed by the Delhi
High Court quashing the said order as well as the disciplinary 40 proceedings
cannot, therefore, be upheld.
The
respondent was placed under suspension on August 11, 1972 and continued under
suspension till April 9, 1973 on which date Education Act came into force. In
other words she was under suspension at a time when the Education Act was not
in force.
The order
of suspension cannot be judged on the basis of the provisions of the Education
Act and the Education Rules. We are, therefore, unable to uphold the direction
of the High Court quashing her order of suspension."
The
aforesaid judgment states principle of law of far reaching consequences, i.e.
an institution which is run by a minority linguistic or religious would not be
controlled exclusively by the provisions of the DSE Act and the Rules framed
thereunder, as the grant of approval would tantamount to interfere in the
internal management of a minority institution.
1. Now,
we may refer to the case of T.M.A. Pai (supra) which has been strongly relied
upon by learned counsel appearing from both the sides before us. In this
judgment, the Court had practically discussed the entire case law on the
subject and particularly, the case of Kerala Education Bill, 1957 (supra) as
well as Ahmedabad St. Xavier's case (supra). It may be noticed that the law
stated by 41 the Seven-Judge Bench in Kerala Education Bill, 1957 case (supra),
to some extent, has been diluted. Various aspects of this case, we shall
shortly proceed to discuss, but let us first examine what the Court has held
and in what context. It is really not necessary for us to get into detailed
factual matrix and all the principles that have been enunciated by the
Eleven-Judge Bench.
It will
be better for us to restrict ourselves to the discussion only in relation to
the question of involvement in the present case. The learned Additional
Solicitor General relied upon paras 72, 73, 107, 136, 138, 141, 144 and 450 of
the judgment in support of his submissions.
1. On the
contrary, the learned counsel for the appellants submitted that the paragraphs
relied upon by the respondents are the minority view and not the part of the
majority judgment. With this, he placed reliance upon paras 89, 116 and 123 of
the judgment.
In order
to avoid any ambiguity or confusion, we must clarify at the outset that till
paragraph 161, it is the majority view of the T.M.A. Pai's case (supra)
whereafter different Judge/Judges have expressed their views and given
independent conclusions and answers to the questions framed. Thus, it will be
expected from 42 us and we would only refer to the decision and finding of the
majority view, which is binding on the Court.
1. The
respondents have placed reliance upon the law stated by the Bench that any
regulation framed in the national interest must necessarily apply to all
educational institutions, whether run by majority or the minority. Such a
limitation must be read into Article 30. The rule under Article 30(1) cannot be
such as to override the national interest or to prevent the Government from
framing regulations in that behalf. It is, of course, true that Government
regulations cannot destroy the minority character of the institution or make a
right to establish and administer a mere illusion, but the right under Article
30 is not so absolute as to be above the law. The appellant also seek to derive
benefit from the view that the Courts have also held that the right to
administer is not absolute and is subject to reasonable regulations for the
benefit of the institutions as the vehicle of education consistent with the
national interest. Such general laws of the land would be also applicable to
the minority institutions as well. There is no reason why regulations or
conditions concerning generally the welfare of the students and teachers should
not be made 43 applicable in order to provide a proper academic atmosphere. As
such, the provisions do not, in any way, interfere with the right of
administration or management under Article 30(1). Any law, rule or regulation,
that would put the educational institutions run by the minorities at a disadvantage,
when compared to the institutions run by the others, will have to be struck
down. At the same time, there may not be any reverse discrimination.
1. It was
observed in St. Xavier's case (supra), at page 192 of the judgment that the
whole object of conferring the right on minorities under Article 30 is to
ensure that there will be equality between the majority and the minority. If
the minorities do not have such special protection, they will be denied
equality. The emphasis by the appellants is more on paragraphs 88 to 90 to say
that Articles 29 and 30 are a group of articles relating to cultural and
educational rights. Article 29(1) gives the right to any section of the
citizens having a distinct language, script or culture of its own, to conserve
the same. Article 29(2) refers to admission to a educational institution
established by anyone, but which is maintained by the State or receives aid out
of State funds. In other words, State-maintained or aided educational
institutions, whether 44 established by the Government or the majority or a
minority community cannot deny admission to a citizen on the ground of
religion, race, caste or language. Article 30(1) states the right of minorities
to establish and administer educational institutions of their choice, as
provided under that Article. The fundamental freedom is to establish and to
administer educational institutions.
It is a
right to establish and administer institutions to cater the educational needs
of the minorities or sections thereof.
1. Before
we really analyze the dictum of this Court in its various judgments and examine
the scope of their application to the facts of the present case, it would be
necessary for us to refer to certain specific paragraphs of the judgment,
besides the above portions which have been relied upon by the learned counsel
appearing for the respective parties. The basic questions which would arise for
consideration with regard to the facts of the present case are the extent of
the right to establish, administer and management of institution by the
linguistic minorities, the extent of control or restrictions that can be
imposed by the State and obviously the right of a minority institution to
receive grant-in-aid. In the case of T.M.A. Pai (supra), the Court was primarily
concerned with the 45 ambit and scope of grant of admission to the students in
various academic courses in the minority institutions aided or unaided. In that
case, the Court was basically not concerned with the methodology to be adopted
by the minority institutions and the restrictions that can be imposed by the
Government with regard to the recruitment of teachers like Rule 64(1)(b) of the
DSE Rules.
So to
understand, the impact of the dictum in T.M. Pai's case (supra), we may
usefully refer to certain paragraphs of the judgment itself.
"123.
After referring to the earlier cases in relation to the appointment of
teachers, it was noted by Khanna, J., that the conclusion which followed was
that a law which interfered with a minority's choice of qualified teachers, or
its disciplinary control over teachers and other members of the staff of the
institution, was void, as it was violative of Article 30(1).
While it
was permissible for the State and its educational authorities to prescribe the
qualifications of teachers, it was held that once the teachers possessing the
requisite qualifications were selected by the minorities for their educational
institutions, the State would have no right to veto the selection of those
teachers. The selection and appointment of teachers for an educational
institution was regarded as one of the essential ingredients under Article
30(1). The Court's attention was drawn to the fact that in Kerala Education
Bill, 1957 case this Court had opined that clauses 11 and 12 made it obligatory
for all aided schools to select teachers from a panel selected from each
district by the Public Service Commission and that no teacher of an aided
school could be 46 dismissed, removed or reduced in rank without the previous
sanction of the authorized officer. At SCR p. 245, Khanna, J., observed that in
cases subsequent to the opinion in Kerala Education Bill, 1957 case this Court
had held similar provisions as clause 11 and clause 12 to be violative of
Article 30(1) of the minority institution. He then observed as follows: (SCC
p.792, para 109) "The opinion expressed by this Court in Re Kerala
Education Bill, 1957 was of an advisory character and though great weight
should be attached to it because of its persuasive value, the said opinion cannot
override the opinion subsequently expressed by this Court in contested cases.
It is the law declared by this Court in the subsequent contested cases which
would have a binding effect. The words `as at present advised' as well as the
preceding sentence indicate that the view expressed by this Court in Re Kerala
Education Bill, 1957 in this respect was hesitant and tentative and not a final
view in the matter."
124. In
Lily Kurian v. Sr. Lewina this Court struck down the power of the
Vice-Chancellor to veto the decision of the management to impose a penalty on a
teacher. It was held that the power of the Vice-Chancellor, while hearing an
appeal against the imposition of the penalty, was uncanalized and unguided.
In
Christian Medical College Hospital Employees' Union v. Christian Medical
College Vellore Assn. this Court upheld the application of industrial law to
minority colleges, and it was held that providing a remedy against unfair
dismissals would not infringe Article 30. In Gandhi Faiz-e-am College v. University
of Agra a law which sought to regulate the working of minority institutions by
providing that a broad-based management committee could be reconstituted by
including therein the Principal 47 and the seniormost teacher, was valid and
not violative of the right under Article 30(1) of the Constitution. In All
Saints High School v. Govt. of A.P. a regulation providing that no teacher
would be dismissed, removed or reduced in rank, or terminated otherwise except
with the prior approval of the competent authority, was held to be invalid, as
it sought to confer an unqualified power upon the competent authority. In Frank
Anthony Public School Employees' Assn. v. Union of India the regulation
providing for prior approval for dismissal was held to be invalid, while the
provision for an appeal against the order of dismissal by an employee to a
tribunal was upheld. The regulation requiring prior approval before suspending
an employee was held to be valid, but the provision, which exempted unaided
minority schools from the regulation that equated the pay and other benefits of
employees of recognized schools with those in schools run by the authority, was
held to be invalid and violative of the equality clause. It was held by this
Court that the regulations regarding pay and allowances for teachers and staff
would not violate Article 30.
xxx xxx
xxx xxx xxx 135. We agree with the contention of the learned Solicitor-General
that the Constitution in Part III does not contain or give any absolute right.
All rights conferred in Part III of the Constitution are subject to at least
other provisions of the said Part. It is difficult to comprehend that the
framers of the Constitution would have given such an absolute right to the
religious or linguistic minorities, which would enable them to establish and
administer educational institutions in a manner so as to be in conflict with
the other Parts of the Constitution. We find it difficult to accept that in the
establishment and administration of 48 educational institutions by the
religious and linguistic minorities, no law of the land, even the Constitution,
is to apply to them.
136.
Decisions of this Court have held that the right to administer does not include
the right to maladminister. It has also been held that the right to administer
is not absolute, but must be subject to reasonable regulations for the benefit
of the institutions as the vehicle of education, consistent with national
interest.
General
laws of the land applicable to all persons have been held to be applicable to
the minority institutions also -- for example, laws relating to taxation,
sanitation, social welfare, economic regulation, public order and morality.
137. It
follows from the aforesaid decisions that even though the words of Article
30(1) are unqualified, this Court has held that at least certain other laws of
the land pertaining to health, morality and standards of education apply. The
right under Article 30(1) has, therefore, not been held to be absolute or above
other provisions of the law, and we reiterate the same. By the same analogy,
there is no reason why regulations or conditions concerning, generally, the
welfare of students and teachers should not be made applicable in order to
provide a proper academic atmosphere, as such provisions do not in any way
interfere with the right of administration or management under Article 30(1).
xxx xxx
xxx xxx xxx 141. The grant of aid is not a constitutional imperative. Article
337 only gives the right to assistance by way of grant to the Anglo-Indian
community for a specified period of time. If no aid is granted to anyone,
Article 30(1) would not justify a demand for aid, and it cannot be said that
the absence of aid makes the right 49 under Article 30(1) illusory. The
founding fathers have not incorporated the right to grants in Article 30,
whereas they have done so under Article 337; what, then, is the meaning, scope
and effect of Article 30(2)? Article 30(2) only means what it states viz.
that a
minority institution shall not be discriminated against where aid to
educational institutions is granted. In other words the State cannot, when it
chooses to grant aid to educational institutions, deny aid to a religious or
linguistic minority institution only on the ground that the management of that
institution is with the minority. We would, however, like to clarify that if an
abject surrender of the right to management is made a condition of aid, the
denial of aid would be violative of Article 30(2). However, conditions of aid
that do not involve a surrender of the substantial right of management would
not be inconsistent with constitutional guarantees, even if they indirectly
impinge upon some facet of administration. If, however, aid were denied on the
ground that the educational institution is under the management of a minority,
then such a denial would be completely invalid.
142. The
implication of Article 30(2) is also that it recognizes that the minority
nature of the institution should continue, notwithstanding the grant of aid. In
other words, when a grant is given to all institutions for imparting secular
education, a minority institution is also entitled to receive it, subject to
the fulfilment of the requisite criteria, and the State gives the grant knowing
that a linguistic or minority educational institution will also receive the
same. Of course, the State cannot be compelled to grant aid, but the receipt of
aid cannot be a reason for altering the nature or character of the recipient
educational institution.
143. This
means that the right under Article 30(1) implies that any grant that is given
by 50 the State to the minority institution cannot have such conditions
attached to it, which will in any way dilute or abridge the rights of the
minority institution to establish and administer that institution. The
conditions that can normally be permitted to be imposed, on the educational
institutions receiving the grant, must be related to the proper utilization of
the grant and fulfilment of the objectives of the grant. Any such secular
conditions so laid, such as a proper audit with regard to the utilization of
the funds and the manner in which the funds are to be utilized, will be
applicable and would not dilute the minority status of the educational
institutions. Such conditions would be valid if they are also imposed on other
educational institutions receiving the grant.
144. It
cannot be argued that no conditions can be imposed while giving aid to a
minority institution. Whether it is an institution run by the majority or the
minority, all conditions that have relevance to the proper utilization of the
grant-in-aid by an educational institution can be imposed. All that Article
30(2) states is that on the ground that an institution is under the management
of a minority, whether based on religion or language, grant of aid to that
educational institution cannot be discriminated against, if other educational
institutions are entitled to receive aid. The conditions for grant or non-grant
of aid to educational institutions have to be uniformly applied, whether it is
a majority-run institution or a minority-run institution. As in the case of a
majority-run institution, the moment a minority institution obtains a grant of
aid, Article 28 of the Constitution comes into play. When an educational
institution is maintained out of State funds, no religious instruction can be
provided therein. Article 28(1) does not state that it applies only to
educational institutions 51 that are not established or maintained by religious
or linguistic minorities. Furthermore, upon the receipt of aid, the provisions
of Article 28(3) would apply to all educational institutions whether run by the
minorities or the non-minorities. Article 28(3) is the right of a person
studying in a State-recognized institution or in an educational institution
receiving aid from State funds, not to take part in any religious instruction,
if imparted by such institution, without his/her consent (or his/her guardian's
consent if such a person is a minor). Just as Articles 28(1) and (3) become
applicable the moment any educational institution takes aid, likewise, Article
29(2) would also be attracted and become applicable to an educational
institution maintained by the State or receiving aid out of State funds.
It was
strenuously contended that the right to give admission is one of the essential
ingredients of the right to administer conferred on the religious or linguistic
minority, and that this right should not be curtailed in any manner. It is
difficult to accept this contention.
If
Articles 28(1) and (3) apply to a minority institution that receives aid out of
State funds, there is nothing in the language of Article 30 that would make the
provisions of Article 29(2) inapplicable. Like Article 28(1) and Article 28(3),
Article 29(2) refers to "any educational institution maintained by the
State or receiving aid out of State funds". A minority institution would
fall within the ambit of Article 29(2) in the same manner in which Article
28(1) and Article 28(3) would be applicable to an aided minority institution.
It is true that one of the rights to administer an educational institution is
to grant admission to 52 the students. As long as an educational institution,
whether belonging to the minority or the majority community, does not receive
aid, it would, in our opinion, be its right and discretion to grant admission
to such students as it chooses or selects subject to what has been clarified
before. Out of the various rights that the minority institution has in the
administration of the institution, Article 29(2) curtails the right to grant
admission to a certain extent. By virtue of Article 29(2), no citizen can be
denied admission by an aided minority institution on the grounds only of
religion, race, caste, language or any of them.
It is no
doubt true that Article 29(2) does curtail one of the powers of the minority
institution, but on receiving aid, some of the rights that an unaided minority
institution has, are also curtailed by Articles 28(1) and 28(3).
A
minority educational institution has a right to impart religious instruction --
this right is taken away by Article 28(1), if that minority institution is
maintained wholly out of State funds. Similarly on receiving aid out of State
funds or on being recognized by the State, the absolute right of a minority
institution requiring a student to attend religious instruction is curtailed by
Article 28(3). If the curtailment of the right to administer a minority
institution on receiving aid or being wholly maintained out of State funds as
provided by Article 28 is valid, there is no reason why Article 29(2) should
not be held to be applicable. There is nothing in the language of Articles
28(1) and (3), Article 29(2) and Article 30 to suggest that, on receiving aid,
Articles 28(1) and (3) will apply, but Article 29(2) will not. Therefore, the
contention that the institutions covered by Article 30 are outside the
injunction of Article 29(2) cannot be accepted."
1. The
Court then proceeded to discuss the concept of equality and secularism and
noticed that for a healthy family, it is important that each member is strong
and healthy and all members have the same constitution, whether physical or
mental. For harmonious growth and health, it is but natural for the parents to
give more attention and food to the weaker child, so as to help him or her to
become stronger. Noticing recognition and preservation of different types of
people with diverse languages and different beliefs is essential, the Court
answered the 11 questions framed therein . It is not necessary for us to refer
to all the questions and answers, suffices, it would be to notice the relevant
questions and answers given by the majority in para 161 of the judgment.
"Q.
1. What is the meaning and content of the expression "minorities" in
Article 30 of the Constitution of India? A. Linguistic and religious minorities
are covered by the expression "minority" under Article 30 of the
Constitution. Since reorganization of the States in India has been on
linguistic lines, therefore, for the purpose of determining the minority, the
unit will be the State and not the whole of India. Thus, religious and
linguistic minorities, who have been put on a par in Article 30, have to be
considered Statewise.
54 xxx
xxx xxx xxx xxx Q. 4. Whether the admission of students to minority educational
institution, whether aided or unaided, can be regulated by the State Government
or by the university to which the institution is affiliated? A. Admission of
students to unaided minority educational institutions viz. schools and
undergraduate colleges where the scope for merit-based selection is practically
nil, cannot be regulated by the State or university concerned, except for
providing the qualifications and minimum conditions of eligibility in the
interest of academic standards.
The right
to admit students being an essential facet of the right to administer
educational institutions of their choice, as contemplated under Article 30 of
the Constitution, the State Government or the university may not be entitled to
interfere with that right, so long as the admission to the unaided educational
institutions is on a transparent basis and the merit is adequately taken care
of. The right to administer, not being absolute, there could be regulatory
measures for ensuring educational standards and maintaining excellence thereof,
and it is more so in the matter of admissions to professional institutions.
A
minority institution does not cease to be so, the moment grant-in-aid is
received by the institution. An aided minority educational institution,
therefore, would be entitled to have the right of admission of students
belonging to the minority group and at the same time, would be required to
admit a reasonable extent of non-minority students, so that the rights under
Article 30(1) are not substantially impaired and further the citizens' rights
under Article 29(2) are not infringed. What would be a reasonable extent, would
vary from the 55 types of institution, the courses of education for which
admission is being sought and other factors like educational needs. The State
Government concerned has to notify the percentage of the non-minority students
to be admitted in the light of the above observations. Observance of inter se
merit amongst the applicants belonging to the minority group could be ensured.
In the case of aided professional institutions, it can also be stipulated that
passing of the common entrance test held by the State agency is necessary to
seek admission. As regards non-minority students who are eligible to seek
admission for the remaining seats, admission should normally be on the basis of
the common entrance test held by the State agency followed by counselling
wherever it exists.
Q. 5. (a)
Whether the minorities' rights to establish and administer educational
institutions of their choice will include the procedure and method of admission
and selection of students? A. A minority institution may have its own procedure
and method of admission as well as selection of students, but such a procedure
must be fair and transparent, and the selection of students in professional and
higher education colleges should be on the basis of merit. The procedure
adopted or selection made should not be tantamount to maladministration. Even
an unaided minority institution ought not to ignore the merit of the students
for admission, while exercising its right to admit students to the colleges
aforesaid, as in that event, the institution will fail to achieve excellence.
Q. 5. (b)
Whether the minority institutions' right of admission of students and to lay
down procedure and method of admission, if any, would be affected in any way by
the receipt of State aid? 56 A. While giving aid to professional institutions,
it would be permissible for the authority giving aid to prescribe bye-rules or
regulations, the conditions on the basis of which admission will be granted to
different aided colleges by virtue of merit, coupled with the reservation
policy of the State qua non-minority students.
The merit
may be determined either through a common entrance test conducted by the
university or the Government concerned followed by counselling, or on the basis
of an entrance test conducted by individual institutions -- the method to be
followed is for the university or the Government to decide.
The
authority may also devise other means to ensure that admission is granted to an
aided professional institution on the basis of merit.
In the
case of such institutions, it will be permissible for the Government or the
university to provide that consideration should be shown to the weaker sections
of the society.
Q. 5. (c)
Whether the statutory provisions which regulate the facets of administration
like control over educational agencies, control over governing bodies,
conditions of affiliation including recognition/withdrawal thereof, and
appointment of staff, employees, teachers and principals including their service
conditions and regulation of fees, etc. would interfere with the right of
administration of minorities? A. So far as the statutory provisions regulating
the facets of administration are concerned, in case of an unaided minority
educational institution, the regulatory measure of control should be minimal
and the conditions of recognition as well as the conditions of affiliation to a
university or board have to be complied with, but in the matter of day-to-day
management, like the appointment of staff, teaching and non-teaching, and
administrative control over them, the 57 management should have the freedom and
there should not be any external controlling agency. However, a rational
procedure for the selection of teaching staff and for taking disciplinary action
has to be evolved by the management itself.
For
redressing the grievances of employees of aided and unaided institutions who
are subjected to punishment or termination from service, a mechanism will have
to be evolved, and in our opinion, appropriate tribunals could be constituted,
and till then, such tribunals could be presided over by a judicial officer of
the rank of District Judge.
The State
or other controlling authorities, however, can always prescribe the minimum
qualification, experience and other conditions bearing on the merit of an
individual for being appointed as a teacher or a principal of any educational
institution.
Regulations
can be framed governing service conditions for teaching and other staff for
whom aid is provided by the State, without interfering with the overall
administrative control of the management over the staff.
Fees to
be charged by unaided institutions cannot be regulated but no institution
should charge capitation fee.
xxx xxx
xxx xxx xxx Q. 9. Whether the decision of this Court in Unni Krishnan, J.P. v.
State of A.P. (except where it holds that primary education is a fundamental
right) and the scheme framed thereunder require reconsideration/ modification
and if yes, what? 58 A. The scheme framed by this Court in Unni Krishnan case
and the direction to impose the same, except where it holds that primary
education is a fundamental right, is unconstitutional. However, the principle
that there should not be capitation fee or profiteering is correct. Reasonable
surplus to meet cost of expansion and augmentation of facilities does not,
however, amount to profiteering."
1. The
above paragraphs and the conclusions arrived at by the Court, certainly suggest
that the Court did not specifically or impliedly over ruled or expressed any
different view than what was taken by the Court in Ahmedabad St. Xavier's case
(supra) as well as discussed the impact of Kerala Education Bill, 1957 case
(supra) with reference to Clauses 11 and 12, then the Court held that the view
expressed in Kerala Education Bill, 1957 case (supra) was tentative. The view
of the Court is that it is not an absolute right of the minority institution,
but a right where certain conditions could be applied but such conditions
should not, in any way, destroy or completely diminish the status and
constitutional direction available to that minority.
1. With
the passage of time this Court had the occasion to deal with the clarificatory
enunciation of law stated in T.M.A. Pai's case 59 (supra) and dealt with
different cases depending on the facts and circumstances of those cases. In the
case of Brahmo Samaj Education Society (supra), a Bench of this Court was
concerned with the appointment of persons to the post of teachers including
principal under the West Bengal College Teachers (Security of Services) Act,
1975, the West Bengal College Services Commission, 1978 and the Regulations
framed thereunder. A particular procedure was stated under these rules for
making these appointments as per the regulations, National Eligibility Test
(NET) is conducted by UGC (University Grants Commission) for determining
teaching eligibility criteria of the candidate, which was added as an essential
qualification for appointment as a teacher and, even further, restrictions were
introduced by adding College Service Commission and appointments were sought to
be made through this Commission. The Brahmo Samaj Education Society challenged
this procedure and being a religious minority claiming benefit under Articles
25, 26 and 30 (1) of the Constitution, questioned the constitutional validity
of these provisions. The Court considered the question whether the appointment
of teachers in an aided institution by the College Service 60 Commission by
restricting the petitioner's right to appointment is a reasonable restriction.
After following the law stated in T.M.A. Pai's case (supra), the Court held as
under :
"6.
The question now before us is to decide whether the appointment of teachers in
an aided institution by the College Service Commission by restricting the
petitioners' right to appointment is a reasonable restriction in the interest
of general public or not. The petitioners have a right to establish and
administer educational institution. Merely because the petitioners are
receiving aid, their autonomy of administration cannot be totally restricted
and institutions cannot be treated as a government-owned one. Of course the
State can impose such conditions as are necessary for the proper maintenance of
standards of education and to check maladministration.....
7. But
that control cannot extend to the day- to-day administration of the
institution. It is categorically stated in T.M.A. Pai (SCC at p. 551, para 72)
that the State can regulate the method of selection and appointment of teachers
after prescribing requisite qualification for the same. Independence for the
selection of teachers among the qualified candidates is fundamental to the
maintenance of the academic and administrative autonomy of an aided
institution. The State can very well provide the basic qualification for
teachers.
Under the
University Grants Commission Act, 1956, the University Grants Commission (UGC)
had laid down qualifications to a teaching post in a university by passing
Regulations. As per these Regulations UGC conducts National Eligibility Test
(NET) for determining teaching eligibility of candidates.
UGC has
also authorised accredited States to conduct State-Level Eligibility Test
(SLET).
Only a
person who has qualified NET or SLET will be eligible for appointment as a
teacher in an aided institution. This is the required basic 61 qualification
for a teacher. The petitioners' right to administer includes the right to
appoint teachers of their choice among the NET-/SLET- qualified candidates.
8.
Argument on behalf of the State that the appointment through the College
Service Commission is to maintain the equal standard of education all
throughout the State of West Bengal, does not impress us. The equal standard of
teachers are already maintained by NET/SLET. Similarly, receiving aid from
State coffers can also not be treated as a justification for imposition of any
restrictions that cannot be imposed otherwise."
In the
above case, the Court did not rest with laying down the above law but even
directed the State Government to take due notice of the declarations made in
the T.M.A. Pai's case (supra) and to take appropriate steps in that regard.
1.
Thereafter, a Five-Judge Bench of this Court in Islamic Academy of Eduation v.
State of Karnataka [(2003) 6 SCC 697], while dealing with the right of the
minorities, aided as well as unaided institutions including professional
educational institutions, in relation to the process of admission and fee
structure, specified that the constitution of committees for admission and fee
structure process was improper in relation to unaided minority institutions
while certain other specifications were given with regard to the minority aided
institutions but the Court specifically noted that non- 62 minority educational
institutions, in certain matters, cannot and do not stand on the same footing
as minority educational institutions which enjoys the protection of Article 30
and the preferential right to admit students of their own community. Further
noticing that the whole object of conferring the right on minority is that they
will be on equality with the majority, the Court further held as under :
"9........Undoubtedly,
at first blush it does appear that these paragraphs equate both types of
educational institutions. However, on a careful reading of these paragraphs it
is evident that the essence of what has been laid down is that the minority
educational institutions have a guarantee or assurance to establish and
administer educational institutions of their choice. These paragraphs merely
provide that laws, rules and regulations cannot be such that they favour
majority institutions over minority institutions.
We do not
read these paragraphs to mean that non-minority educational institutions would
have the same rights as those conferred on minority educational institutions by
Article 30 of the Constitution of India. Non- minority educational institutions
do not have the protection of Article 30. Thus, in certain matters they cannot
and do not stand on a similar footing as minority educational institutions.
Even though the principle behind Article 30 is to ensure that the minorities
are protected and are given an equal treatment yet the special right given
under Article 30 does give them certain advantages. Just to take a few
examples, the Government may decide to nationalise education. In that case it
may be enacted that private educational institutions will not be permitted.
Non-minority 63 educational institutions may become bound by such an enactment.
However, the right given under Article 30 to minorities cannot be done away
with and the minorities will still have a fundamental right to establish and administer
educational institutions of their choice. Similarly, even though the Government
may have a right to take over management of a non-minority educational
institution, the management of a minority educational institution cannot be
taken over because of the protection given under Article
30. Of
course, we must not be understood to mean that even in national interest a
minority institute cannot be closed down. Further, minority educational
institutions have preferential right to admit students of their own
community/language. No such rights exist so far as non-minority educational
institutions are concerned.
xxx xxx
xxx xxx xxx 14.......Whilst discussing Article 30 under the heading "To
what extent can the rights of aided private minority institutions to administer
be regulated" reliance has been placed, in the majority judgment, on
previous judgments in the cases of Kerala Education Bill, 1957, Re, Sidhajbhai
Sabhai v. State of Gujarat, Rev. Father W. Proost v. State of Bihar, State of
Kerala v. Very Rev. Mother Provincial and Ahmedabad St. Xavier's College
Society v. State of Gujarat. All these cases have recognised and upheld the
rights of minorities under Article 30. These cases have held that in the guise
of regulations, rights under Article 30 cannot be abrogated. It has been held,
even in respect of aided minority institutions that they must have full
autonomy in administration of that institution.
It has
been held that the right to administer includes the right to admit students of
their own community/ language. Thus an unaided 64 minority professional college
cannot be in a worse position than an aided minority professional college. It
is for this reason that paragraph 68 provides that a different percentage can
be fixed for unaided minority professional colleges. The expression
"different percentage for minority professional institutions" carries
a different meaning than the expression "certain percentage for unaided
professional colleges". In fixing the percentage for unaided minority
professional colleges the State must keep in mind, apart from local needs, the
interest/need of that community in the State. The need of that community, in
the State, would be paramount vis-`-vis the local needs."
1. In an
attempt to clarify the matters beyond controversy, a Seven- Judge Bench of this
Court in the case of P.A. Inamdar v. State of Maharashtra [(2005) 6 SCC 537],
discussed the entire gamut of law in relation to minority educational
institutions and noticed that the right conferred by Article 30 was more in the
nature of protection for minorities. It protects minority institutions from
regulatory legislations framed under Article 19 (6), but still they were not
immune from regulatory control. The Court was primarily concerned in that case
with admission of the students to different institutions where it observed that
even within the scope and ambit of Article 30(1) there was a need for imposing
reasonable restrictions even on the minority institutions, and such direction
65 would not vitiate and hurt the minority status. There are two basic concepts
- one relating to imposition of conditions with regard to the management of the
institutions and secondly the power of the State to step in where there are
questions of national interest.
The Court
did approve the permitted operation of the committees with reference to
rationality and reasonableness and the two significant matters were decided by
the Court as follows :
"103.
To establish an educational institution is a fundamental right. Several
educational institutions have come up. In Kerala Education Bill6 "minority
educational institutions" came to be classified into three categories,
namely, (i) those which do not seek either aid or recognition from the State;
(ii)
those which want aid; and (iii) those which want only recognition but not aid.
It was held that the first category protected by Article 30(1) can
"exercise that right to their hearts' content" unhampered by
restrictions. The second category is most significant. Most of the educational
institutions would fall in that category as no educational institution can, in
modern times, afford to subsist and efficiently function without some State
aid. So it is with the third category. An educational institution may survive
without aid but would still stand in need of recognition because in the absence
of recognition, education imparted therein may not really serve the purpose as
for want of recognition the students passing out from such educational
institutions may not be entitled to admission in other educational 66
institutions for higher studies and may also not be eligible for securing jobs.
Once an educational institution is granted aid or aspires for recognition, the
State may grant aid or recognition accompanied by certain restrictions or
conditions which must be followed as essential to the grant of such aid or
recognition. This Court clarified in Kerala Education Bill that "the right
to establish and administer educational institutions" conferred by Article
30(1) does not include the right to maladminister, and that is very obvious.
Merely
because an educational institution belongs to a minority it cannot ask for aid
or recognition though running in unhealthy surroundings, without any competent
teachers and which does not maintain even a fair standard of teaching or which
teaches matters subversive to the welfare of the scholars.
Therefore,
the State may prescribe reasonable regulations to ensure the excellence of the
educational institutions to be granted aid or to be recognised. To wit, it is
open to the State to lay down conditions for recognition such as, an
institution must have a particular amount of funds or properties or number of
students or standard of education and so on. The dividing line is that in the
name of laying down conditions for aid or recognition the State cannot directly
or indirectly defeat the very protection conferred by Article 30(1) on the
minority to establish and administer educational institutions.
Dealing
with the third category of institutions, which seek only recognition but not
aid, Their Lordships held that "the right to establish and administer
educational institutions of their choice" must mean the right to establish
real institutions which will effectively serve the needs of the community and
scholars who 67 resort to these educational institutions. The dividing line
between how far the regulation would remain within the constitutional limits
and when the regulations would cross the limits and be vulnerable is fine yet
perceptible and has been demonstrated in several judicial pronouncements which
can be cited as illustrations. They have been dealt with meticulous precision
coupled with brevity by S.B. Sinha, J. in his opinion in Islamic Academy. The
considerations for granting recognition to a minority educational institution
and casting accompanying regulations would be similar as applicable to a
non-minority institution subject to two overriding considerations: (i) the
recognition is not denied solely on the ground of the educational institution
being one belonging to minority, and (ii) the regulation is neither aimed at
nor has the effect of depriving the institution of its minority status.
xxx xxx
xxx xxx xxx 134. However, different considerations would apply for graduate and
postgraduate level of education, as also for technical and professional
educational institutions. Such education cannot be imparted by any institution
unless recognised by or affiliated with any competent authority created by law,
such as a university, Board, Central or State Government or the like.
Excellence in education and maintenance of high standards at this level are a
must. To fulfil these objectives, the State can and rather must, in national
interest, step in. The education, knowledge and learning at this level
possessed by individuals collectively constitutes national wealth."
68 The
apparent analysis was that the emphasis has to be on the need for preserving
its minority character so as to enjoy the privilege of protection under Article
30(1).
1. Still,
in the case of Kanya Junior High School, Bal Vidya Mandir v. U.P. Basic Shiksha
Parishad [(2006) 11 SCC 92], this Court observed that the law did not
contemplate granting of any higher rights to the minority as opposed to
majority and it only conferred additional protection. Referring to P.A.
Inamdar's case (supra), the Court declared that the object underlying Article
30(1) is to see the desire of minorities that their children should be brought
up properly, efficiently and acquire eligibility for higher university
education. It further noticed that under the provisions of law, the approval of
District Basic Education Officer was not necessary before terminating the
services of a teacher, as the institution was recognized as a minority
institution. Last of the judgment, which has some bearing on the subject in
question, is on the principle reiterated by a Bench of this Court in the case
of Secy. Malankara Syrian Catholic College (supra), where the Court again dealt
with the aided minority educational institutions and terms and 69 conditions of
services of employees. The Court in para 12 of the judgment framed the
following two questions :
"12.
The rival contentions give rise to the following questions:
(i) To
what extent, the State can regulate the right of the minorities to administer
their educational institutions, when such institutions receive aid from the
State? (ii) Whether the right to choose a Principal is part of the right of
minorities under Article 30(1) to establish and administer educational
institutions of their choice. If so, would Section 57(3) of the Act violate
Article 30(1) of the Constitution of India?"
The
Answer to question no. 1 was provided in para 21 while question no. 2 was
answered in para Nos. 27 and 28 of the judgment which read as under :
"21.
We may also recapitulate the extent of regulation by the State, permissible in
respect of employees of minority educational institutions receiving aid from
the State, as clarified and crystallised in T.M.A. Pai. The State can
prescribe:
(i) the
minimum qualifications, experience and other criteria bearing on merit, for
making appointments, (ii) the service conditions of employees without
interfering with the overall administrative control by the management over the
staff, 70 (iii) a mechanism for redressal of the grievances of the employees,
(iv) the conditions for the proper utilisation of the aid by the educational
institutions, without abridging or diluting the right to establish and
administer educational institutions.
In other
words, all laws made by the State to regulate the administration of educational
institutions and grant of aid will apply to minority educational institutions
also. But if any such regulations interfere with the overall administrative
control by the management over the staff, or abridges/dilutes, in any other
manner, the right to establish and administer educational institutions, such
regulations, to that extent, will be inapplicable to minority institutions.
xxx xxx
xxx xxx xxx
27. It is
thus clear that the freedom to choose the person to be appointed as Principal
has always been recognised as a vital facet of the right to administer the
educational institution.
This has
not been, in any way, diluted or altered by T.M.A. Pai. Having regard to the
key role played by the Principal in the management and administration of the
educational institution, there can be no doubt that the right to choose the
Principal is an important part of the right of administration and even if the
institution is aided, there can be no interference with the said right. The
fact that the post of the Principal/Headmaster is also covered by State aid
will make no difference.
28. The
appellant contends that the protection extended by Article 30(1) cannot be used
71 against a member of the teaching staff who belongs to the same minority
community. It is contended that a minority institution cannot ignore the rights
of eligible lecturers belonging to the same community, senior to the person
proposed to be selected, merely because the institution has the right to select
a Principal of its choice. But this contention ignores the position that the
right of the minority to select a Principal of its choice is with reference to
the assessment of the person's outlook and philosophy and ability to implement
its objects. The management is entitled to appoint the person, who according to
them is most suited to head the institution, provided he possesses the
qualifications prescribed for the posts. The career advancement prospects of
the teaching staff, even those belonging to the same community, should have to
yield to the right of the management under Article 30(1) to establish and
administer educational institutions."
The above
answers to the questions formulated demonstrates that the Court has kept a
clear line of distinction between laws made by the State to regulate the
administration of educational institutions receiving grant-in-aid but if such
regulations interfere with overall administrative control by the management
over the staff or abridges or dilutes, in any other manner, the right to
establish and administer educational institutions, in that event, to such
extent, the regulations will be inapplicable to the minorities.
Discussion
on constitutional provisions read in conjunction with the provisions of the Delhi
School Education Act,1973 and 72 the Rules framed there under with reference to
the legal principles above enunciated
1.
Undoubtedly, the Preamble of our Constitution mandates `to secure to all its
citizens justice - social, economic and political'.
The
Constitution has been held to be a living and organic thing and not a mere law
and it is expected to be construed broadly and liberally. Thus, these
expressions must be given liberal construction so as to further the
constitutional mandate. The social and economic justice would take within its
ambit the progress and development of the entire nation without reference to
caste, creed, colour or the section of the society to which they belong.
1.
Article 14 of the Constitution commands equality before law or the equal
protection of laws. The concept of equality is wide enough to include equality
in advantages available to the public at large as a result of State action. The
Constitution has itself made out certain exceptions to the general rule of
equality in terms of Articles 15 and 16. Article 15 (1) spells out a
prohibitory intent against the State that it would not discriminate against any
citizen on the ground only of religion, race, caste, sex, place of birth or 73
any of them. In other words, the State cannot deny the equality on the basis of
the aforestated factors. Despite this mandate, Article 15(3) spells out an
exception to Article 15(1) and 15(2) as well as to the concept of basic
equality and empowers the State to make special provisions for women and
children. Similarly, by Article 15(4), which was introduced by 1st
Constitutional Amendment of 1951, the State is further empowered to make any
special provisions for advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes and Scheduled Tribes. Article
15(5), which was introduced by 93rd Constitutional Amendment of 2005, made out
another exception to the general rule of equality and this sub- Article, while
giving power to the State to enact special laws, also carves out an exception
in regard to which this power cannot be exercised, i.e. minority educational
institutions referred to in clause (1) of Article 30. Article 15(5) reads as
under :
"Nothing
in this article or in sub-clause (g) of Clause (1) of Article 19 shall prevent
the State from making any special provision, by law, for the advancement of any
socially and educationally backward classes of citizens or for the Scheduled
Castes or the Scheduled Tribes insofar as such special provisions relate to
their admission to the educational institutions including private educational
institutions, whether aided or unaided by the 74 State, other than the minority
educational institutions referred to in Clause (1) of Article 30."
1.
Article 16 further guarantees to the citizens equality of opportunity in
matters of public employment. Article 16(2) again prohibits discrimination in
respect of any employment or office under the State on the ground of religion,
race, caste, sex, descent, place of birth, residence or any of them. These
factors cannot render any citizen ineligible for appointment for public
employment. Clauses (3) to (4B) are the provisions which empowers the State to
make any law in regard to a class or classes of employment or appointment to an
office under the Government of, or any local or other authority within, a State
or Union Territory, any requirement as to a residence within that State or
Union Territory, prior to such employment or appointment. It also empowers the
State from making any provision for the reservation of appointments or posts in
favour of any backward class which, in the opinion of the State, is not
adequately represented in the service under the State. The State is also vested
with the power of reserving the vacancies in a particular year and make
reservation in favour of Scheduled Castes and Scheduled Tribes, which are not
adequately 75 represented in service of the State, in matters of promotion with
consequential seniority. Putting it simply, the State is entitled to make law
and reservations in different fields for Scheduled Castes and Scheduled Tribes
and the persons belonging to backward class in the services under the State, in
accordance with law.
1. While
dealing with the cultural and educational rights under the Constitution, the
framers have devoted specific attention to the minorities in our country while
enacting Articles 29 and 30. Article 29 grants complete protection to any
section of the citizens residing in the territory of India having a distinct
language, script or culture of its own and freedom to conserve the same.
Besides granting this freedom, this Article also mandates that no citizen shall
be denied admission to any educational institution maintained by the State or
receiving aid out of the State funds on the grounds of discrimination stated in
Articles 15 and 16 of the Constitution. Article 30 gives certain rights to the
minorities, i.e. all minorities whether religious or linguistic, have the right
to establish and administer educational institutions of their choice.
Article
30(2) has to be noticed with some emphasis. It requires the State not to
discriminate against any educational institution on 76 the ground that it is
under the management of a minority, whether based on religion or language, while
granting aid to the educational institution. The Article reads as under :
"30.
Right of minorities to establish and administer educational institutions.--(2)
The State shall not, in granting aid to educational institutions, discriminate
against any educational institution on the ground that it is under the
management of a minority, whether based on religion or language."
1. The
principle of free primary education had been introduced as a constitutional
right by this Court in Unni Krishnan, J.P. V. State of A.P. [(1993) 1 SCC 645].
The Court, while dealing with the case of T.M.A. Pai (supra), not only
reiterated the same with approval but made right to receive secondary education
as a fundamental right. The dictum of this Court then led to 86th constitutional
amendment by Amendment Act of 2002 wherein Article 21-A was introduced placing
a clear obligation on the State to provide free and compulsory education to all
children of the age of 6 to 14 years in such manner as the State may by law
determine. The judgments of the Court and the constitutional law introduced a
new dimension to the right of the children to receive education.
77 To
achieve this object, the State had to introduce various incentives and policies
to invite the private sector into the field of dispensation of education. This
obviously, led to certain liberalization in the field of private sector dealing
with the different levels of education. All the schools, which then came up,
had to be recognized by the competent authority and they had to work under the
regulatory measures declared by the State but in accordance with law. The
private sector could be dissected into two sectors - aided and non-aided
schools. The aided schools could further be divided into two sections -
minority institutions receiving grant in aid and, non-minority institutions
receiving grant- in-aid.
1. As is
evident from the above narrated principles, the Government does not enjoy
identical control over the management of the schools belonging to the minority
and/or majority schools. In view of the above ground reality and amendment in
law, Article 30(2) provides a definite protection to the minority institutions
that they would not be discriminated against providing of grant-in-aid. This
aspect is further dealt with some clarity in Chapter VI relating to
grant-in-aid under the provisions of the DSE Rules, 1973. In 78 terms of Rule
60, every aided school will continue to get the aid subject to the provisions
of the DSE Rules. Rule 64 of DSE Rules contemplates that aid to be given upon
furnishing of suitable undertaking by the managing committee. The grant-in-aid,
then, would be given only upon satisfaction of the conditions stipulated in
Rule 65. Second proviso to Rule 10 requires that wherever a linguistic minority
school decides to impart education in a language other than the language of
such linguistic minority, in that event the Administrator shall not be under
any obligation to give grant-in-aid to such schools. In other words, a school
run by linguistic minority would be entitled to receive grant-in-aid if it is
imparting education in the language of the minority, of course, by satisfying
other stated conditions. The right to receive grant thus has to be accepted as
a legitimate right in contra-distinction or opposed to legal right to get
recognition including the case of a minority institution. This principle has
been reiterated by this Court in catena of judgments including the judgments
referred by us above. The logical impact of Article 30(2) read with the provisions
of the DSE Act and the Rules framed thereunder is that, to receive grant-in-aid
is a legitimate right of a school subject 79 to satisfying the requirements of
law. Article 30(2) thus, has been worded in a negative language not permitting
the State to discriminate the minority institution in relation to the matters
of grant-in-aid.
1.
Article 15(5) of the Constitution excludes the minority educational
institutions from the power of the State to make any provision by law for the
advancement of any social or backward classes of the citizens or for Scheduled
Castes and Scheduled Tribes in relation to their admission to educational
institutions including private educational institutions whether aided or
unaided. This Article is capable of very wide interpretation and vests the
State with power of wide magnitude to achieve the purpose stated in the
Article.
But, the
framers of the Constitution have specifically excluded minority educational
institutions from operation of this clause.
Article
16 which ensures equality of opportunity in matters of public employment again
has been worded so as to prohibit discrimination and, at the same time, vests
the State with power to make provisions, laws and reservations in relation to a
particular class or classes of persons. It is of some significance to notice
that power of the State to exercise such power is in relation to the 80
`service under the State'. This expression has been used in all the clauses of
the Article which relates to providing of employment and framing of
laws/reservations in those categories. Upon its true construction, this
expression itself is capable of a wide construction and must be construed
liberally and cannot be restricted to its narrow sense. The expression `service
under the State' would obviously include service directly under the State
Government or its instrumentalities and/or even the sectors which can be termed
as a State within the meaning of Article 12 of the Constitution. Once an
organization or society falls outside the ambit of this circumference, in that
event, it will be difficult for the Courts to hold that the State has a right
to frame such laws or provisions or make reservations in the field of
employment of those societies.
1. The
interpretation of the word `State' really does not require any deliberation as
this aspect is no more res-integra and has been settled by the law stated in
the case of Ajay Hasia v. Khalid Mujib Sehravardi [(1981) 1 SCC 722], where
this Court spelt out the test that would be applicable in determining whether a
Corporation or a Government Company or a private body is an instrumentality or
81 agency of the State. Primarily, there are different type of controls, which
can be exercised by the State over any other authority, society, organization
or private body to bring it within the ambit of the expression `State' or
`other authority' appearing in Article 12 of the Constitution. These are
financial control, managerial and administrative control and functional
control. To put it differently, what is the administrative control that the
Government exercises upon such a body, whether functions of that body are
governmental functions or closely related thereto, quantum of State control,
volume of financial assistances, character and structure of the body and cumulative
effect of these factors etc.
This has
been followed consistently in the case of Zoroastrian Coop. Housing Society
Ltd. v. District Registrar, Coop. Societies (Urban) [(2005) 5 SCC 632] and in a
very recent judgment in the case of State of U.P. v. Radhey Shyam Rai [(2009) 5
SCC 577], wherein this Court held that Uttar Pradesh Ganna Kishan Sansthan
(Sansthan) is a State because these criteria were satisfied and even the State
could take over the functions of the Sansthan. Unless all these three aspects
are established or they are stated to be satisfied, it will not be permissible
to term that 82 society, organization or body as a `State'.
1. There
is no doubt, that there may be minority institutions which are receiving
grant-in-aid from the Government. But, merely receiving grant-in-aid per se
would not make such school or institution `State' within the meaning of Article
12 of the Constitution of India. Even this aspect we need not discuss in any
great detail as the question stands settled by the judgment of this Court in
the case of V.K. Sodhi (supra), wherein this Court has dealt with the question
whether State Council of Education, Research and Training is not State or other
authority within the meaning of Article 12. The Court returned the finding that
though the finances were being provided by the State, the State Government does
not have deep and pervasive control over the working of the Council and it was
an independent society and thus, is not a State. The Court held as under :
"11.
The two elements, one, of a function of the State, namely, the coordinating of
education and the other, of the Council being dependant on the funding by the
State, satisfied two of the tests indicated by the decisions of this Court.
But, at the same time, from that alone it could not be assumed that SCERT is a
State. It has to be noted that though finance is made available by the State,
in the matter of administration of that finance, 83 the Council is supreme. The
administration is also completely with the Council. There is no governmental
interference or control either financially, functionally or administratively,
in the working of the Council. These were the aspects taken note of in Chander
Mohan Khanna (supra) to come to the conclusion that NCERT is not a State or
other authority within the meaning of Article 12 of the Constitution of India.
No doubt, in Chander Mohan Khanna (supra), the Bench noted that the fact that
education was a State function could not make any difference. This part of the
reasoning in Chander Mohan Khanna (supra) case has been specifically
disapproved by the majority in Pradeep Kumar Biswas (supra). The majority noted
that the objects of forming Indian Institute of Chemical Biology was with the
view of entrusting it with a function that is fundamental to the governance of
the country and quoted with approval the following passage in Rajasthan SEB v.
Mohan Lal [(1967) 3 S.C.R. 377]:
"The
State, as defined in Article 12, is thus comprehended to include bodies created
for the purpose of promoting the educational and economic interests of the
people."
The
majority then stated:
"We
are in respectful agreement with this statement of the law. The observations to
the contrary in Chander Mohan Khanna v. NCERT relied on by the learned
Attorney- General in this context, do not represent the correct legal
position."
xxx xxx
xxx xxx xxx
13. We
also find substantial differences in the two set ups. Sabhajit Tewary (supra),
after referring to the rules of the Council of Scientific and Industrial
Research which was registered under the Societies Registration Act, concluded
that it was not a State within the meaning of Article 12 of the Constitution.
While
overruling the said decision, the majority in Pradeep Kumar Biswas (supra) 84
took the view that the dominant role played by the Government of India in the
governing body and the ubiquitous control of the Government in the Council and
the complete subjugation of the Governing Body to the will of the Central
Government, the inability of the Council to lay down or change the terms and
conditions of service of its employees and the inability to alter any bye-law
without the approval of the Government of India and the owning by the Central
Government of the assets and funds of the Council though normally owned by the
society, all indicated that there was effective and pervasive control over the
functioning of the Council and since it was also entrusted with a Governmental
function, the justifiable conclusion was that it was a State within the meaning
of Article 12 of the Constitution. The majority also noticed that on a winding
up of that Council, the entire assets were to vest in the Central Government
and that was also a relevant indication. Their Lordships in the majority also
specifically overruled as a legal principle that a Society registered under the
Societies Registration Act or a company incorporated under the Companies Act,
is by that reason alone excluded from the concept of State under Article 12 of
the Constitution. In the case of SCERT, in addition to the operational autonomy
of the Executive Committee, it could also amend its bye-laws subject to the
provisions of the Delhi Societies Registration Act though with the previous
concurrence of the Government of Delhi and that the proceedings of the Council
are to be made available by the Secretary for inspection of the Registrar of
Societies as per the provisions of the Societies Registration Act.
The
records and proceedings of the Council have also to be made available for
inspection by the Registrar of Societies. In the case of dissolution of SCERT,
the liabilities and assets are to be taken over at book value by the Government
of Delhi which had to appoint a liquidator for completing the dissolution of
the Body. The creditors' loans and other liabilities of SCERT shall have
preference and bear a first charge on the assets of the Council at the time of
dissolution. This is not 85 an unconditional vesting of the assets on
dissolution with the Government. It is also provided that the provisions of the
Societies Registration Act, 1860 had to be complied with in the matter of filing
list of office-bearers every year with the Registrar and the carrying out of
the amendments in accordance with the procedure laid down in the Act of 1860
and the dissolution being in terms of Sections 13 and 14 of the Societies
Registration Act, 1860 and making all the provisions
of the Societies Registration Act applicable to the Society.
These
provisions, in our view, indicate that SCERT is subservient to the provisions
of the Societies
Registration Act rather than to the State Government
and that the intention was to keep SCERT as an independent body and the role of
the State Government cannot be compared to that of the Central Government in
the case of Council of Scientific and Industrial Research.
14. As we
understand it, even going by paragraph 40 of the judgment in Pradeep Kumar
Biswas (supra), which we have quoted above, we have to consider the cumulative
effect of all the facts available in the case. So considered, we are inclined
to hold that SCERT is not a State or other authority within the meaning of
Article 12 of the Constitution of India. As we see it, the High Court has not
independently discussed the relevant rules governing the functioning and
administration of SCERT. It has proceeded on the basis that in the face of
Pradeep Kumar Biswas (supra) decision, the decision in Chander Mohan Khanna
(supra) must be taken to be overruled and no further discussion of the question
is necessary. But, in our view, even going by Pradeep Kumar Biswas (supra),
each case has to be considered with reference to the facts available for
determining whether the body concerned is a State or other authority within the
meaning of Article 12 of the Constitution of India. So considered, we find that
the Government does not have deep and pervasive control over the working of
SCERT.
It does
not have financial control in the sense that once the finances are made
available to 86 it, the administration of those finances is left to SCERT and
there is no further governmental control. In this situation, we accept the
submission on behalf of the appellants and hold that SCERT is not a State or
other authority within the meaning of Article 12 of the Constitution of India.
After all, the very formation of an independent society under the Societies
Registration Act would also suggest that the
intention was not to make the body a mere appendage of the State. We reverse
the finding of the High Court on this aspect."
1. The
principle above enunciated clearly shows that it is the cumulative effect of
all the three essential features which would finally help in determining
whether a society, body or an association is `State' or not. We have referred
to various provisions of the DSE Act, 1973 and particularly, the Rules framed
there under. The DSE Rules specifically contemplate that the State Government
will not have any strict control over the management of these institutions.
Even the members, who are nominated by the Director of Education, would only
have a right of limited participation with no right of voting. Rule 59(b)(iv),
requires two other persons who are or have been teachers of any other school or
college, to be nominated by the Advisory Board on the Managing Committee of a
school. However, this clause shall not apply to a minority institution in terms
of the proviso to the said 87 Rule. The limited extent of control exercisable by
the authorities is demonstrated in DSE Rules 44, 59 and 96(3A) & (3B).
Every school is required, when it desires to establish a new school, to give
intimation in writing to the Administrator or its office to establish such a
school to specifically exempt the minorities' institutions from application of
this detailed provision. In addition to this, the management of a minority
school cannot be taken over by the authorities in terms of Section 20 of the
DSE Act as the statute itself prohibits the application of Section 20 to such
school in terms of Section 21 of the Act. Besides these statutory provisions
and the scheme under the DSE Act, various judgments of this Court have also
consistently taken the view that the State has no right of interference in the
establishment, administration and management of a school run by linguistic
minority except the power to regulate as specified.
1. The
right to establish and administer includes a right to appoint teachers. Thus,
except providing grant-in-aid as per the DSE Rules and having no power to
discriminate in terms of Article 30(2) of the Constitution, the Government has
a very limited regulatory control over the minority institutions and no control
88 whatsoever on the managing committee, internal management of the school and,
of course, has no power to take over such an institution. This Court has also
expressed the view in some judgments that in respect of minority or even
minority institutions, steps can be taken even for closure of such institutions
in the national interest which of course may be a rare exception. Once the
State lacks basic power of jurisdiction to make special provisions and
reservations in relation to minority institutions, which do not form part of
service under the State, it will be difficult for the Court to hold that Rule
64(1)(b) can be enforced against aided minority institution. There are still
other aspects which can usefully be examined to analyze this issue in a greater
detail. In T.M.A. Pai's case (supra) the right to establish an institution is
provided. The Court held that the right to establish an institution is provided
in Article 19(1)(g) of the Constitution. Such right, however, is subject to
reasonable restriction, which may be brought about in terms of clause (6)
thereof. Further, that minority, whether based on religion or language,
however, has a fundamental right to establish and administer educational
institution of its own choice under Article 30(1).
1. The
right under clause (1) of Article 30 is not absolute but subject to reasonable
restrictions which, inter alia, may be framed having regard to the public
interest and national interest of the country.
Regulation
can also be framed to prevent mal-administration as well as for laying down
standards of education, teaching, maintenance of discipline, public order,
health, morality etc. It is also well settled that a minority institution does
not cease to be so, the moment grant-in-aid is received by the institution. An
aided minority education institution, therefore, would be entitled to have the
right of admission of students belonging to the minority group and, at the same
time, would be required to admit a reasonable extent of non-minority students,
to the extent, that the right in Article 30(1) is not substantially impaired
and further, the citizen's right under Article 29 (2) is not infringed.
1. A
minority institution may have its own procedure and method of admission as well
as the selection of students but it has to be a fair and transparent method.
The State has the power to frame regulations which are reasonable and do not
impinge upon the basic character of the minority institutions. This Court, in
some of 90 the decisions, has taken the view that the width of the rights and
limitations thereof of unaided institutions, whether run by a majority or by a
minority, must conform to the maintenance of excellence and with a view to
achieve the said goal indisputably, the regulations can be made by the State.
It is also equally true that the right to administer does not amount to the
right to mal- administer and the right is not free from regulations. The
regulatory measures are necessary for ensuring orderly, efficient and sound
administration. The regulatory measures can be laid down by the State in the
administration of minority institutions.
The right
of the State is to be exercised primarily to prevent mal- administration and
such regulations are permissible regulations.
These
regulations could relate to guidelines for the efficiency and excellence of
educational standards, ensuring the security of the services of the teachers or
other employees, framing rules and regulations governing the conditions of
service of teachers and employees and their pay and allowances and prescribing
course of study or syllabi of the nature of books etc. Some of the
impermissible regulations are refusal to affiliation without sufficient
reasons, such conditions as would completely destroy the 91 autonomous status
of the educational institution, by introduction of outside authority either
directly or through its nominees in the Governing Body or the Managing
Committee of minority institution to conduct its affairs etc. These have been
illustrated by this Court in the Case of State of Kerala v. Very Rev. Mother
Provincial [1970) 2 SCC 417, All Saints High School v. Govt. of A.P. [(1980) 2
SCC 478] and T.M.A. Pai's case (supra). Even in the Kerala Education Bill, 1957
case (supra), referred for opinion by the President under Article 143(1) of the
Constitution, this Court while answering question No.2 emphasized upon the
freedom and extent of protection available to the minority institutions.
Referring to the fact that Articles 29 and 30 are set out in Part-III of the
Constitution, which guarantees fundamental rights, the text and margin notes of
both the Articles show that their purpose is to confer those fundamental rights
on certain sections of community, which constitute minority communities.
The Court
held that Article 30(1) cannot be limited and should equally operate in favour
of educational institution, whether established pre or post the commencement of
the Constitution.
The Bench
repelled the contention that by admission of an 92 outsider, the minority
institution will loose its character as such, and held:
"To
say that an institution which receives aid on account of its being a minority
educational institution must not refuse to admit any member of any other
community only on the grounds therein mentioned and then to say that as soon as
such institution admits such an outsider it will cease to be a minority
institution is tantamount to saying that minority institutions will not, as
minority institutions, be entitled to any aid".
While
admitting non-members, the institution does not shed its character or ceases to
be a minority institution. The freedom of minority institutions was further
explained by the Bench by saying that it is the choice of the minority
institution, to establish such educational institutions as well serve both
purposes that of conserving their religion, language or culture and also the
purpose of giving a thorough good general education to their children. So, they
could even impart education in their own language or in any other language,
which choice essentially has to be left to the minority institution. The constitution
itself uses the word `choice' in Article 30(1), which indicates the extent of
liberty and freedom, the framers of the Constitution intended to grant to the
minority community.
Thus,
there arises no occasion for the Court to read restrictions into 93 such
freedom on the ground of policy. It may amount to intrusion into the very
minority character and protection available to the community in law. The right
to frame regulations, therefore, is not itself an unregulated right. It has its
own limitations and sphere within which such regulations would be framed and
made operative.
1. It is
not necessary for us to examine the extent of power to make regulations, which
can be enforced against linguistic minority institutions, as we have already
discussed the same in the earlier part of the judgment. No doubt, right
conferred on minorities under Article 30 is only to ensure equality with the
majority but, at the same time, what protection is available to them and what
right is granted to them under Article 30 of the Constitution cannot be diluted
or impaired on the pretext of framing of regulations in exercise of its
statutory powers by the State. The permissible regulations, as afore-indicated,
can always be framed and where there is a mal-administration or even where a
minority linguistic or religious school is being run against the public or
national interest, appropriate steps can be taken by the authorities including
closure but in accordance with law. The minimum qualifications, experience,
other criteria for making appointments etc are the 94 matters which will fall
squarely within the power of the State to frame regulations but power to veto
or command that a particular person or class of persons ought to be appointed
to the school failing which the grant-in-aid will be withdrawn, will apparently
be a subject which would be arbitrary and unenforceable. Even in T.M.A. Pai's
case (supra), which view was reiterated by this Court in the case of Secy.
Malankara Syrian Catholic College (supra), it was held that the conditions for
proper utilization of the aid by the educational institution was a matter
within the empowerment of the State to frame regulations but without abridging
or diluting the right to establish and administer educational institutions. In
that case, while dealing with the appointment of a person as Principal, the
Court clearly stated the dictum that the freedom to choose the person to be
appointed as Principal has always been recognized as a vital facet to right to
administer the educational institution. It being an important part of the
administration and even if the institution is aided, there can be no
interference with the said right.
The power
to frame regulations and control the management is subject to another
restriction which was reiterated by the Court in P.A. Inamdar's case (supra)
stating that it is necessary that the 95 objective of establishing the
institution was not defeated.
1. At
last, what is the purpose of granting protection or privilege to the minorities
in terms of Article 29, and at the same time, applying negative language in
Article 30(2) in relation to State action for releasing grant-in-aid, as well
as the provisions of DSE Act, 1973 and the rules framed there under? It is
obvious that the constitutional intent is to bring the minorities at parity or
equality with the majority as well as give them right to establish, administer
and run minority educational institutions. With the primary object of Article
21A of the Constitution in mind, the State was expected to expand its policy as
well as methodology for imparting education. DSE Act, as we have already
noticed, was enacted primarily for the purpose of better organization and
development of school education in the Union Territory of Delhi and for matters
connected therewith or incidental thereto. Thus, the very object and propose of
this enactment was to improve the standard as well as management of school
education. It will be too farfetched to read into this object that the law was
intended to make inroads into character and privileges of the minority.
Besides, in the given facts and circumstances of the case, the Court is also 96
duty bound to advance the cause or the purpose for which the law is enacted.
Different laws relating to these fields, thus, must be read harmoniously,
construed purposively and implemented to further advancement of the objects,
sought to be achieved by such collective implementation of law. While, you keep
the rule of purposive interpretation in mind, you also further add such
substantive or ancillary matters which would advance the purpose of the
enactment still further. To sum up, we will term it as `doctrine of purposive
advancement'. The power to regulate, undisputedly, is not unlimited. It has
more restriction than freedom particularly, in relation to the management of
linguistic minority institutions. The rules, which were expected to be framed
in terms of Section 28 of the DSE Act, were for the purpose of carrying out the
provisions of the Act. Even, otherwise, it is a settled principle of law that
Rules must fall within the ambit and scope of the principal legislation.
Section 21 is sufficiently indicative of the inbuilt restrictions that the
framers of the law intended to impose upon the State while exercising its power
in relation to a linguistic minority school.
1. To
appoint a teacher is part of the regular administration and management of the
School. Of course, what should be the qualification or eligibility criteria for
a teacher to be appointed can be defined and, in fact, has been defined by the
Government of N.C.T. of Delhi and within that specified parameters, the right
of the linguistic minority institution to appoint a teacher cannot be
interfered with. The paramount feature of the above laws was to bring
efficiency and excellence in the field of school education and, therefore, it
is expected of the minority institutions to select the best teacher to the
faculty. To provide and enforce the any regulation, which will practically
defeat this purpose would have to be avoided. A linguistic minority is entitled
to conserve its language and culture by a constitutional mandate. Thus, it must
select people who satisfy the prescribed criteria, qualification and
eligibility and at the same time ensure better cultural and linguistic
compatibility to the minority institution. At this stage, at the cost of
repetition, we may again refer to the judgment of this Court in T.M.A. Pai's
case (supra), where in para 123, the Court specifically noticed that while it
was permissible for the State and its educational authorities to prescribe
qualifications of a teacher, 98 once the teachers possessing the requisite
qualifications were selected by the minorities for their educational
institutions, the State would have no right to veto the selection of the
teachers.
Further,
the Court specifically noticed the view recorded by Khanna, J. in reference to
Kerala Education Bill, 1957 case (supra), and to clauses 11 and 12 of the Bill
in particular, where the learned Judge had declared that, it is the law
declared by the Supreme Court in subsequently contested cases as opposed to the
Presidential reference, which would have a binding effect and said:
"123.........The
words `as at present advised' as well as the preceding sentence indicate the
view expressed by this Court in relation to Kerala Education Bill, 1957, in
this respect was hesitant and tentative and not a final view in the
matter."
What the
Court had expressed in para 123 above, appears to have found favour with the
Bench dealing with the case of T.M.A. Pai (supra). In any case, nothing to the
contrary was observed or held in the subsequent judgment by the larger Bench.
1. The
concept of equality stated under Article 30(2) has to be read in conjunction
with the protection under Article 29 and thus it must 99 then be given effect
to achieve excellence in the field of education.
Providing
of grant-in-aid, which travels from Article 30(2) to the provisions of the DSE
Act and Chapter VI of the Rules framed there under, is again to be used for the
same purpose, subject to regulations which themselves must fall within the
permissible legislative competence. The purpose of grant-in-aid cannot be
construed so as to destroy, impair or even dilute the very character of the
linguistic minority institutions. All these powers must ultimately, stand in
comity to the provisions of the Constitution, which is the paramount law. The
Court will have to strike the balance between different facets relating to
grant-in-aid, right to education being the fundamental right, protection
available to religious or linguistic minorities under the Constitution and the
primary object to improve and provide efficiency and excellence in school
education. In our considered view, it will not be permissible to infringe the
constitutional protection in exercise of State policy or by a subordinate
legislation to frame such rules which will impinge upon the character or in any
way substantially dilute the right of the minority to administer and manage
affairs of its school. Even though in the case of Mohinder Kaur (supra), the
100 Bench of this Court held that upon restoration of the minority character of
the institution, the provisions of the Act and the rules framed there under
would cease to apply to a minority institution.
We still
would not go that far and would preferably follow the view expressed by larger
Bench of this Court in T.M.A. Pai's case (supra) and even rely upon other
subsequent judgments, which have taken the view that the State has the right to
frame such regulations which will achieve the object of the Act. Even if it is
assumed that there is no complete eclipse of the DSE Act in the Rules in the
case of minority institutions, still Rule 64(1)(b), if enforced, would
adversely affect and dilute the right and protection available to the minority
school under the Constitution.
1. Now,
we will revert back to the facts of the present case. There is no dispute to
the fact that the appellant-school is a linguistic minority institution and has
been running as such for a considerable time. Admittedly, it was receiving
grant-in-aid for all this period. Its minority status was duly accepted and
declared by the judgment of the Delhi High Court in the case of this very
institution and which has attained finality. In this very judgment, the Court
also held that certain provisions of DSE Rules, 1973 101 would not apply to
this minority school. Thereafter, vide letter dated 12th March, 1985, the
Managing Committee was required to give an undertaking that it would make
reservation in service for Scheduled Castes and Schedule Tribes, to which the
school had replied relying upon the judgment of the Delhi High Court in its own
case. However, vide letter dated 21st March, 1986, Secretary (Education),
Government of N.C.T., Delhi had informed the appellants that the circular requiring
Government aided schools to comply with the provisions relating to reservation
was not applicable to the minority institutions. In face of the judgment of the
Court, such a requirement was not carried out by the appellant-school and the
controversy was put at rest vide letter dated 21st March, 1986 and the
institution continued to receive the grant-in-aid. However, in September, 1989,
again, a letter was addressed to all the government aided schools including the
appellant stating that it was a precondition for all agencies receiving
grant-in-aid, not only to enforce the requirement of providing reservation in
the posts but even not to make any regular appointments in the general category
till the vacancies in the reserved category were filled up. This was challenged
before 102 the High Court. At the very outset, we may notice that we entirely
do not approve the view expressed by the learned Single Judge of the Delhi High
Court in the case of Sumanjit Kaur (supra) insofar as it held that the
regulation would be unconstitutional since they are likely to interfere with
the choice of the medium of instruction as well as minority character of the
institution by compelling the appointments to the teaching faculty of the
persons, who may be inimical towards the minority community.
1. We are
of the considered view that the learned Single Judge as well as the Division
Bench erred in law in stating the above proposition as it is contra-legam. The
Preamble of our Constitution requires the people of India to constitute into a
`Sovereign Socialist Secular Democratic Republic'. Secularism, therefore, is
the essence of our democratic system. Secularism and brotherhoodness is a
golden thread that runs into the entire constitutional scheme formulated by the
framers of the Constitution. The view of the learned Single Judge and the
Division Bench in the case of Sumanjit Kaur (supra), runs contra to the
enunciated law. We are afraid that while deciding a constitutional matter in
accordance with law, the Court would not 103 be competent to raise a
presumption of inimical attitude of and towards one community or the other. We
do not approve the view of the High Court that a provision of an Act or a
Circular issued there under could be declared as unconstitutional on such
presumptuous ground. However, to the extent that it may interfere with the
choice of medium of instructions as well as minority character of the
institution to some extent is a finding recorded in accordance with law. The
Division Bench while entertaining the appeal against the judgment of the
learned Single Judge, had primarily concentrated on the point that the
selection of the teacher was valid and not violative of the Rules and accepted
the findings recorded by the learned Single Judge, resulting in grant of relief
to the appellants. Further, in our considered view and for the reasons
afore-recorded, the judgment of the Division Bench in the present case while
dismissing the writ petition filed by the appellants before that Court cannot
be sustained in law. Further, in the judgment under appeal the Division Bench
was right in not accepting the reason given by the learned Single Judge founded
on other persons being inimical towards minority. It was expected of the
Division Bench to critically analyze other reasons given by 104 the learned
Single Judge in the case of Sumanjit Kaur (supra), which had been followed in
the present case. We could have had the benefit of the independent view of the
Division Bench as well.
Reasoning
is considered as the soul of the judgment. The Bench referred to the fact that
the view in the Kerala Education Bill, 1957 case (supra) was tentative but
still erred in ignoring paragraph 123 of the T.M.A. Pai's case (supra) as well
as the other judgments referred by us, presumably, as they might not have been
brought to the notice of the Bench. The discussion does not analyze the various
principles enunciated in regard to the protection available to the linguistic
minorities under Article 29 of the Constitution and the result of principle of equality
introduced by Article 30(2) of the Constitution. For the detailed reasons
recorded in this judgment, we are unable to persuade ourselves to accept the
view of the Division Bench in the Judgment under appeal.
1. A
linguistic minority has constitution and character of its own. A provision of
law or a Circular, which would be enforced against the general class, may not
be enforceable with the same rigors against the minority institution,
particularly where it relates to establishment and management of the school. It
has been held 105 that founders of the minority institution have faith and
confidence in their own committee or body consisting of the persons selected by
them. Thus, they could choose their managing committee as well as they have a
right to choose its teachers. Minority institutions have some kind of autonomy
in their administration.
This
would entail the right to administer effectively and to manage and conduct the
affairs of the institution. There is a fine distinction between a restriction
on the right of administration and a regulation prescribing the manner of
administration. What should be prevented is the mal-administration. Just as
regulatory measures are necessary for maintaining the educational character and
content of the minority institutions, similarly, regulatory measures are
necessary for ensuring orderly, efficient and sound administration. Every
linguistic minority may have its own socio, economic and cultural limitations.
It has a constitutional right to conserve such culture and language. Thus, it
would have a right to choose teachers, who possess the eligibility and
qualifications, as provided, without really being impressed by the fact of
their religion and community. Its own limitations may not permit, for cultural,
economic or other good reasons, to induct teachers from 106 a particular class
or community. The direction, as contemplated under Rule 64(1)(b), could be
enforced against the general or majority category of the Government aided
school but, it may not be appropriate to enforce such condition against
linguistic minority schools. This may amount to interference with their right
of choice and, at the same time, may dilute their character of linguistic
minority. It would be impermissible in law to bring such actions under the
cover of equality which in fact, would diminish the very essence of their
character or status. Linguistic and cultural compatibility can be legitimately
claimed as one of the desirable features of a linguistic minority in relation
to selection of eligible and qualified teachers.
1. A
linguistic minority institution is entitled to the protection and the right of
equality enshrined in the provisions of the Constitution.
The power
is vested in the State to frame regulations, with an object to ensure better
organization and development of school education and matters incidental
thereto. Such power must operate within its limitation while ensuring that it
does not, in any way, dilute or impairs the basic character of linguistic
minority. Its right to establish and administer has to be construed liberally
to 107 bring it in alignment with the constitutional protections available to
such communities. The minority society can hardly be compelled to perform acts
or deeds which per se would tantamount to infringement of its right to manage
and control. In fact, it would tantamount to imposing impermissible
restriction. A school which has been established and granted status of a
linguistic minority for years, it will not be proper to stop its grant-in-aid for
the reason that it has failed to comply with a condition or restriction which
is impermissible in law, particularly, when the teacher appointed or proposed
to be appointed by such institution satisfy the laid down criteria and/or
eligibility conditions. The minority has an inbuilt right to appoint persons,
which in its opinion are better culturally and linguistically compatible to the
institution.
1. To
frame policy is the domain of the Government. If, as a matter of policy, the
Government has decided to implement the reservation policy for upliftment of
the socially or otherwise backward classes, then essentially it must do so
within the frame work of the Constitution and the laws. The concept of
reservation has been provided, primarily, under Article 16 of the Constitution.
Therefore,
it would be the requirement of law that such policies 108 are framed and
enforced within the four corners of law and to achieve the laudable cause of
upliftment of a particular section of the society. In regard to the ambit and
scope of reservation, this Court in the case of M. Nagaraj v. Union of India
[(2006) 8 SCC 212] held as under :- "39. Reservation as a concept is very
wide.
Different
people understand reservation to mean different things. One view of reservation
as a generic concept is that reservation is an anti-poverty measure. There is a
different view which says that reservation is merely providing a right of
access and that it is not a right to redressal. Similarly, affirmative action
as a generic concept has a different connotation. Some say that reservation is
not a part of affirmative action whereas others say that it is a part of
affirmative action.
40. Our
Constitution has, however, incorporated the word "reservation" in
Article 16(4) which word is not there in Article 15(4).
Therefore,
the word "reservation" as a subject of Article 16(4) is different
from the word "reservation" as a general concept.
41.
Applying the above test, we have to consider the word "reservation"
in the context of Article 16(4) and it is in that context that Article 335 of
the Constitution which provides for relaxation of the standards of evaluation
has to be seen. We have to go by what the Constitution-framers intended
originally and not by general concepts or principles.
Therefore,
schematic interpretation of the Constitution has to be applied and this is the
basis of the working test evolved by Chandrachud, J. in the Election
case14."
1. Thus,
the framework of reservation policy should be such, as to fit in within the constitutional
scheme of our democracy. As and when the Government changes its policy
decision, it is expected to give valid reasons and act in the larger interest
of the entire community rather than a section thereof. In its wisdom and
apparently in accordance with law Government had taken a policy decision and
issued the circular dated 21st March, 1986 exempting the minority institutions
from complying with the requirements of the Rule 64(1)(b) of the DSE Rules.
Despite this and judgment of the High Court there was a change of mind by the
State that resulted in issuance of the subsequent circular of September, 1989.
From the record before us, no reasons have been recorded in support of the
decision superseding the circular dated 21st March, 1986. It is a settled canon
of administrative jurisprudence that state action, must be supported by some
valid reasons and should be upon due application of mind. In the affidavits
filed on behalf of the State, nothing in this regard could be pointed out and
in fact, none was pointed out during the course of arguments.
Absence
of reasoning and apparent non-application of mind would give colour of
arbitrariness to the state action. This aspect attains 110 greater lucidity in
light of the well accepted norm that minority institution cannot stand on the
same footing as a non-minority institution.
1.
Besides that, State actions should be actio quaelibet it sua via and every
discharge of its duties, functions and governance should also be within the
constitutional framework. This principle equally applies to the Government
while acting in the field of reservation as well. It would not be possible for
the Courts to permit the State to impinge upon or violate directly or
indirectly the constitutional rights and protections granted to various classes
including the minorities. Thus, the State may not be well within its
constitutional duty to compel the linguistic minority institution to accept a
policy decision, enforcement of which will infringe their fundamental right
and/or protection. On the contrary, the minority can validly question such a
decision of the State in law. The service in an aided linguistic minority
school cannot be construed as `a service under the State' even with the aid of
Article 12 of the Constitution.
Resultantly,
we have no hesitation in coming to the conclusion that Rule 64(1)(b) cannot be
enforced against the linguistic minority school. Having answered this question
in favour of the 111 appellant and against the State, we do not consider it
necessary to go into the constitutional validity or otherwise of Rule 64(1)(b)
of the Rules, which question we leave open.
1. For
the reasons afore-stated, we allow the appeal and hold that Rule 64(1)(b) and
the circular of September, 1989, are not enforceable against the linguistic
minority school in the NCT of Delhi. There shall be no order as to costs.
........................................J. [ DR. B.S. CHAUHAN ]
........................................J.
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